DOUGLAS Ross has claimed the SNP is effectively bluffing when it says it can stage a second independence referendum without Westminster’s approval.

The Scottish Tory leader said the Scottish Government’s own legal advisers would stop an authorised Referendum Bill ever getting to Holyrood as it would be beyond its powers.

He said the law officers, the Lord Advocate and Solicitor General, could not consent to legislation that was clearly outwith the “competence” of the Scottish Parliament.

He accused Nicola Sturgeon of “jumping many steps ahead to potentially distract from issues within her own party”, including SNP angst at not winning a Holyrood majority. 

Scottish ministers can only introduce a Bill to Holyrood if they accompany it with a statement saying it is within legal competence - and the ministerial code requires such a statement to be cleared by the law officers. 

Ms Sturgeon has said that she wants Indyref2 by 2024, Covid permitting, and independence in 2026.

She has said if the UK Government denies Holyrood the power to hold Indyref2 legally, she would pass legislation at Holyrood without the UK Government’s consent, and effectively dare Mr Johnson’s Government to challenge it at the UK Supreme Court.

In the wake of the SNP’s landslide Holyroood election win last week, and with a majority of pro-independence SNP and Greens MSPs elected, she is expected to seek a transfer of referendum powers to Holyrood under Section 30 of the 1998 Scotland Act.

Two such requests have already been refused by the UK Government - one by Theresa May and one by Boris Johnson - and Mr Ross said Mr Johnson would also refuse a third.

The Scottish Tory leader said: “He [the PM] has been very clear that he does not support another independence referendum, but we should be focused on the economy, and therefore I would expect that Section 30 order [request], and to get the same response as previous attempts from Nicola Sturgeon to request a Section 30 order.”

The 1998 Scotland Act, which underpins, states in Schedule 5 that the Union between Scotland and England is a matter reserved solely to Westminster.

Mr Ross said that meant the Lord Advocate could not endorse a standalone Holyrood Referendum Bill as it would be beyond the parliament’s legislative competence.

Asked if he though the Lord Advocate would be the obstacle to getting such a Bill off the ground, he said: “Clearly there are procedures in place both within the Scottish Government that should only see them bringing forward legislation that is within the competency of the Scottish Parliament.

“If the Lord Advocate does not believe something is within the competence of the Scottish Government or the Scottish Parliament, he is there in his dual role as both the most senior legal adviser to the First Minister and the Scottish Government, and of course a member of the Scottish Government cabinet.

“So his role, or whoever is in that position if there is any change, is absolutely crucial and of course, they have a Scotland Act to base their decisions on in terms of competency of what the Scottish Government can and cannot do.”

He went on: “Nicola Sturgeon is framing this as a battle she believes she can force the UK government into, to take the Scottish Government to court.

“But let's look at what the Scotland Act and the Scottish Parliament and Government have within their own competencies.

"I think currently Nicola Sturgeon is jumping many steps ahead to potentially distract from issues within her own party and disappointment for many members of the SNP that she has again failed to secure the majority.”

"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 had 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.”

The last time there was a debate over whether a Holyrood Bill was within the parliament’s competence was in February 2018, when the Scottish Government introduced the emergency Brexit-related European Union (Legal Continuity) (Scotland) Bill. 

After taking legal advice, the then Presiding Officer, Ken Macintosh, made an unprecedented ruling that the Bill was not competent as it strayed beyond Holyrood’s powers.

However that view was only advisory, not binding. 

The ruling that mattered was from the Scottish Government’s law officers, who said it was competent, and that let MSPs debate and pass the legislation.

Indeed, in a first for the parliament, the senior law officer, the Lord Advocate James Wolffe QC, made a statement on the legislative competence of the Bill.  

He said: “The Government cannot introduce a Bill unless it is accompanied by a statement that, in the view of the responsible Minister, the Bill is within competence. 

“The Ministerial Code requires such a statement to be cleared by Law Officers.”

After MSPs passed the EU Continuity Bill, the UK Government referred it to the Supreme Court where it was found to have been largely competent when passed.

However by the time the ruling came down, the Holyrood Bill had been overtaken and rendered defunct by other Brexit legislation passed at Westminster.

A Scottish Government source was scornful of Mr Ross’s argument, noting he was “not  a lawyer”.