Nicola Sturgeon's warning to the English not to travel to Scotland from Monday for a meal inside a pub or restaurant is "not enforceable" as it would be "unlawful discrimination", the country's most senior QC has said.
The First Minister used her weekly Covid briefing on Tuesday to plead with the English not to come to Scotland to “escape the rules in your own area”, as indoor hospitality is shut for a further three weeks south of the Border.
But Roddy Dunlop, dean of the Faculty of Advocates, said this was a "good example" of government issuing "misguided" guidance rather than a legal ban.
With Ms Sturgeon lifting the ban on cross-Border travel from Monday, he said people from the rest of the UK are entitled "to use exactly the same facilities here as the citizens of Scotland."
Any attempt to impose a legal ban would be "unlawful discrimination", he said before noting wryly that the Scottish Government "cannot possibly be suggesting" this.
Ruth Davidson, the Scottish Tories' Holyrood leader, retweeted Mr Dunlop's opinion with the message: "Well, quite. Of course it's not enforceable in law. But we all know why it was quite deliberately said. #dogwhistle."
His intervention came ahead of hospitality partially reopening on Monday in Scotland, with restaurants and bars allowed to open until 8pm indoors as long as they do not serve alcohol. They can open outdoors until 10pm with drink.
Although England's pubs and restaurants reopened two weeks ahead of their Scottish counterparts, they are barred from any indoor service until May 17.
Ms Sturgeon noted this week that "there will be more hospitality open in Scotland than in England" until then and said: "If people are coming north across the border, you know, don’t sort of crowd into places — you shouldn’t be allowed to crowd into places indoors — but don’t come specifically to sort of escape the rules in your own area.”
Her message was echoed by Jason Leitch, Scotland's national clinical director, who urged people not to do things “you can’t do in your own country”.
He said: “Don’t use the border as an excuse to do other stuff — in both directions. So people from Cumbria shouldn’t come to the indoor hospitality in Dumfries and people shouldn’t go the other way round to do something they can’t here.”
An SNP spokesman said: "We must remain cautious and just as we have in the past asked people in Scotland not to travel to England when hospitality has been open there but not here just to go for a drink or to sit indoors, so we would ask people to consider carefully whether they really need to travel just to use hospitality services that are not yet available in their own area."