Nicola Sturgeon’s plan for a second independence referendum should fall at the first hurdle and be ruled illegal by her Government’s own chief legal adviser, Douglas Ross claimed.
The Scottish Tory leader made it clear that even if there is a Holyrood majority to pass a referendum bill, the advice from the Lord Advocate should be that it is illegal.
Ross, who heads to Holyrood as leader of the largest opposition party with 31 Scottish Conservative MSPs, signalled he will not be relying on numbers to stop the SNP’s independence plans.
At a press conference to mark his return to the Holyrood chamber, the Moray MP and now list MSP, spelled out why UK cabinet minister Michael Gove was confident the referendum bill would not end up with the UK government taking the Scottish Government to the Supreme Court.
Ross said: “It is not within the competency of the Scottish Parliament to hold another independence referendum. In 2014 we had the gold standard, which was one which secured a section 30 Order. I would expect the holder of the Office of Lord Advocate to uphold the competency of what the Scottish government can and cannot do.”
Under the Scotland Act 1998, the Scottish parliament is not allowed to pass legislation relating to matters “reserved” to Westminster which widely interpreted to mean that any independence referendum would require Westminster’s approval.
In March the Scottish government introduced a draft Independence Referendum Bill, which if passed, would mandate a second vote on independence to be held but would ultimately be challenged by the UK government.
Boris Johnson has made it clear he would refuse powers to stage a vote but before that stage is reached Ross said the Conservatives would expect the Lord Advocate, currently Lord James Wolffe, to intervene.
Ross said: “His role, or whoever is in that position if there is any change, is absolutely crucial. They have a Scotland Act to base their decisions on in terms of competency of what the Scottish government can and cannot do.”
He added: “Nicola Sturgeon is framing this as a battle in which she believes she can force the UK government to take the Scottish government to court, but let’s look at theScotland Act and what the Scottish Parliament and Government have within their own competencies."
"Nicola Sturgeon is jumping many steps ahead to distract from issues within her own party and the disappointment of many SNP members that she has again failed to secure the majority.”
Ross said the Presiding Officer, who is elected by MSPs as convener of the Scottish parliament, would also have to rule on the competence of any referendum bill.
Ross said: “These are two crucial roles in Scottish democracy, both the role of the Lord Advocate and the role of the presiding officer, and I think people will look very closely at the advice they give in the intervening period if such a bill is brought forward by the SNP.”
The advice of the Presiding Office, who is elected by MSPS to be the neutral chair of the parliament, is not binding on the government.
But if the Lord Advocate rules against any proposed legislation senior Conservatives believe the bill might not see the light of day.
Earlier Michael Gove, the UK cabinet office Minister, repeatedly dismissed any suggestion that the referendum would end up with a legal battle in the UK Supreme Court.
He said: “We’re not going to go there. What I’m going to do is to make sure we do everything we can to concentrate our focus on recovery.”
Speaking on Sunday Nicola Sturgeon said she “wouldn’t rule out” submitting legislation for a second independence referendum in the Scottish parliament early next year though her first priority would be to steer Scotland out of the devastating covid-19 pandemic.
