SNP vote on a separate Scotland ‘would be unlawful’

In a hard-hitting paper, which forensically dismantles many of the SNP’s proposals on how a referendum should be run, Professor Adam Tomkins of Glasgow University states that even an advisory referendum would be outside the Scottish Government’s powers and subject to legal challenges.

He also issued a direct challenge to the Scottish Government’s right to draw up a blueprint for independence, even with SNP ministers.

Prof Tomkins argues that the UK government should call the referendum “as expeditiously as possible”, taking the SNP’s Scottish Parliament victory in May as “the trigger” to hold a vote.

But he says that, contrary to the SNP’s wishes, the referendum should be run by the Electoral Commission instead of a body set up by the Scottish Government.

And he offers a preferred question, “Do you wish Scotland to secede from the United Kingdom?”, saying such wording takes into account the fact this is not an exclusively Scottish issue.

If a second question on granting Holy-rood greater powers – so-called “devo-max” – is put forward, Prof Tomkins says it must be spelled out clearly in advance what this means, something Mr Salmond has refused to do.

The document, submitted to the Commons’ Scottish affairs select committee inquiry on a “referendum on separation”, was dismissed by the Scottish Government last night.

It comes at the end of a challenging week for Mr Salmond and his fellow Nationalists. Aidan O’Neill, QC, also questioned the ability of the Scottish Parliament to organise the referendum, and another paper drawn up for the Commons library warned that an independent Scotland would have to pay almost €10 billion into the European stability fund and would lose its UK rebate if it were to join the European Union.

Prof Tomkins’ evidence has also come at a time when Unionist parties at Westminster are holding talks about taking control of the referendum to make sure it is legal, properly run, sets a simple single question and is not delayed.

It is understood that the coalition government is expected to get Labour support in bringing forward a referendum after the Scottish affairs committee has published its report next year.

In his paper Prof Tomkins was dismissive of the SNP’s claim for a mandate to hold an independence referendum. He said: “Scottish ministers do not speak for Scotland generally (either in law or in fact). In law they speak for Scotland on devolved matters.”

He went on: “Winning a Scottish parliamentary election entitles a party to govern subject to the rule of law; it does not entitle a party to seek to rule in a manner that disregards the legal limits to its powers; this is true irrespective of the size or weight of any party’s mandate.”

Addressing the issue of what questions could be asked, he suggested that any attempt, even with an advisory referendum, to ask a question outside the Scottish Government’s own powers would fall foul of the law.

He said: “If the question is ‘Should Scotland remain in the United Kingdom’ that is a question on a reserved matter and should therefore be asked (if at all) by HM Government under the authority of an Act of Parliament.

“Were the Scottish ministers to seek to ask such a question in a referendum held under the authority of an Act of the Scottish Parliament, there is (at the least) a very strong argument that the Act would be outwith competence and therefore ‘not law’ under section 29 of the Scotland Act 1998 and that the Scottish ministers would be acting outwith their devolved competence if they sought to exercise powers in pursuit of such an Act (Scotland Act 1998, section 54).”

He added: “I would argue that the questions suggested by the Scottish Government in its February 2010 consultation paper, Scotland’s Future: Draft Referendum (Scotland) Bill, would also have been susceptible to challenge for want of competence.”

He claimed that the historic agreement by previous British governments, as well as the current one, undermined any claim by the Scottish Government that it could organise the referendum.

He said: “A succession of British governments appears to have conceded that if Scotland wishes to secede from the United Kingdom, so be it.

“That is to say, it is not British government policy (as far as I can ascertain) that Scotland should be compelled by force to remain in the Union if it has clearly demonstrated that it wishes to leave.”

He added: “Given this, and given also that, for the reasons given above, it is difficult to see that the Scottish Parliament has the competence to legislate on the matter, there is a strong constitutional case that it would be preferable for the United Kingdom parliament to legislate on the matter, and for it to do so as expeditiously as possible.”

But Prof Tomkins also argued that the result of the Scottish Parliament election in May, which gave the SNP a historic majority, meant that there should be a referendum and that the UK government should call it.

He said: “The UK government should acknowledge this by treating the SNP’s victory in the 2011 Scottish parliamentary election as the trigger for the holding of a referendum. For the United Kingdom to hold the referendum would have several further advantages: it would be held under the powers contained in the Political Parties, Elections and Referendums Act 2000; and it would be regulated by the Electoral Commission.”

He added: “Of course, there could be no doubting the legal validity of such a referendum. There is absolutely no doubt whatsoever that the United Kingdom parliament may legislate so as to provide that a referendum be held in Scotland on this matter.”

Prof Tomkins questioned whether it was legal for SNP ministers to order civil servants to prepare documents for independence, which they reportedly have done.

He asked: “Is it competent within the terms of the Scotland Act 1998 for officials to undertake work along these lines on the instruction of Scottish ministers?”

A spokesman for Mr Salmond said last night that the Scottish Government was “entirely confident of the legal position” on holding a referendum and preparing for one.

He went on: “Professor Tomkins needs to catch up. Everyone else, including the Prime Minister, accepts the right of the Scottish Government and Parliament to hold the referendum – we are entirely confident of the legal position, and will bring forward a Referendum Bill for the vote on Scotland’s future to take place in the second half of this parliament.”

The UK government refused to comment on the evidence but official policy remains that it would “not stand in the way” of an independence referendum organised by the Scottish Government.

However, UK ministers have made it clear that they are losing patience with the lack of detail on when the referendum will take place and what the question or questions will be.