A “WILDCAT” referendum run by Holyrood without Westminster’s permission could be ruled legal by the UK’s top judges, a top Tory has said.

Adam Tomkins, a former Scottish Conservative MSP and the John Millar Chair of Public Law at Glasgow University, said that Brexit-related decisions had “muddied the waters”.

As such, Tomkins said that a Holyrood-run independence vote could be deemed legal as it would only seek the opinion of the Scottish people.

Speaking to the Daily Record, the Tory said he was worried about the legal uncertainty in the area, contradicting party leader Douglas Ross’s frequent assertions that such a vote would be an “illegal, wildcat referendum”.

The SNP’s 11-point plan to hold indyref2 says that it will create a referendum bill in Holyrood and dare Westminster to challenge it in the courts, offer a section 30 order, or simply accept that the Scottish parliament has the power to hold an independence vote.

READ MORE: Michael Russell: Here is the SNP's 11-point plan to hold indyref2 in full

Tomkins said there was an “assumption” among Unionists that the courts would rule against Holyrood’s right to hold a referendum, but warned that he does not believe “the law is as clear as that”.

The public law expert said that, while he previously believed holding indyref2 was not in the power of the Scottish parliament, court decisions around Brexit had “very significantly muddied the waters”.

Tomkins said: “If the Scottish Government presents an independence referendum bill as if its purpose is to seek the opinion of the Scottish people, knowing that its effect in law is zero, then because of the Supreme Court’s judgements since Brexit, it is going to be quite difficult I think to convince the Supreme Court (shown below) that this a measure that relates to a reserved matter.

“The effect of the measure might be politically enormous, but the legal effect of the measure is zero.”

The National:

The EU referendum in 2016 was also not legally binding, but it is extremely difficult for any government to deny a clear mandate voted on by the people in answer to such a straight question.

The High Court said on November 3 of that year: “A referendum on any topic can only be advisory for the lawmakers in parliament.”

Tomkins told the Record it was not a “dead cert” that the Supreme Court would allow Holyrood to hold such an advisory referendum, but that it was also not “safe” for Unionists to assume the opposite.

He said an option for the UK Government would be to legislate to end this legal confusion, but warned the political “optics” of this move would be challenging.

On Thursday, Michael Gove said categorically that the Tory government would “not be legislating” to prevent future referendums.

READ MORE: Tories will not change law to stop future independence votes, Michael Gove says

Responding to Tomkins’s comments, SNP MSP Rona Mackay said: “The people of Scotland have spoken and emphatically delivered an SNP landslide, electing a 15-seat majority of independence supporting MSPs along the way.

“While it is welcome that Adam Tomkins in his professional capacity recognises Scotland’s legal right to determine our future, perhaps he might use his expertise to convince his former bosses Boris Johnson and Douglas Ross to respect democracy rather than continuing their Trump-like bid to deny a clear-cut election result.”

A Scottish Conservative spokesperson said: “The last thing that Scotland needs right now, with a health and economic crisis to tackle, is another divisive independence referendum.

“We are fully focused on Scotland’s recovery from the pandemic and that should be the only priority for every party in the Scottish Parliament.”