A constitutional crisis over a Scottish referendum?

Just how serious is the new stand-off between Westminster and Holyrood over a referendum on Scottish independence? I take the view that it’s largely shadow boxing. The two governments will do a deal in the end, even though there’s quite a way to go before it’s clinched. Many believe Cameron boobed badly yesterday by trying to dictate terms.The Guardian  covered the other view  which holds that it was a bold wheeze from the Chancellor George Osborne.  Salmond picked up the gauntlet and insisted on his ability to set a 2014 referendum date regardless.  But note that he still hasn’t rejected the Westminster Coalition’s offer of a “Section 30” order under the Westminster Scotland Act allowing him to hold a binding referendum even though Salmond still maintains that the Scottish Parliament has the power on its own to hold a consultative referendum and that would be enough. Westminster’s legal advice (surprisingly?) says not. Who’s right and does it matter?   In Devolution Matters Alan Trench has some trenchant (sorry!) points to make.

 Because it needs Holyrood’s consent, an unfair attempt to ‘interfere’ in a Scottish referendum is simply impossible. If the Scottish Parliament wishes to reject such an interference, it can do so – though the SNP will then have to deal with the consequences of that rejection for the referendum they have committed to hold.


Alan goes on to give a view on Westminster’s legal advice.

 The UK Government’s legal advice is that Holyrood has no power to legislate for a referendum touching on independence. I don’t agree with that view (I think a referendum authorising the Scottish Government to enter into independence negotiations would be within Holyrood’s competence – but not one purporting to give a mandate for independence)..

If the SNP actually want a referendum as a means to secure independence… that means passing a legally competent referendum bill. The Scottish Government know how strong (and how weak) their legal position is. Even Alex Salmond acknowledges this; on BBC Radio 4′s ‘Today’ programme on Wednesday morning, he said there was ‘no problem’ about a Section 30 order. A Section 30 order, with some strings, offers them as legally certain a route to a referendum as there can be. Trying to block the order really means taking a punt either on winning a political battle as they lose a legal one, or counting on the Parliament’s existing legal powers as adequate for a referendum bill. This is, in a way, a Clint Eastwood moment. The lawyers advising the Scottish Government know just how empty their legal armoury is, so just how lucky does the SNP feel?

That’s a big question. From Salmond’s point of view it would clearly be better to avoid years of legal wrangling which might in the short term boost his position but in the medium term might worry or weary undecided Scottish opinion. The one thing he won’t do is to do a Sinn Fein 1918 and make a sort of UDI. Scottish nationalism is cut from a different cloth   It seems as ever to boil down to the questions for a referendum.  The SNP in fact have been wriggling on the question of including a third question on Devo Max. This is one sign that Salmond is less sure of his ground that it might seem and is willing to talk terms with Westminster. If the pro- Union forces had any sense, they should seize the initiative and make a version of Devo Max their own and take the argument to the SNP – on or off the ballot paper.

I see also that the former Labour Chancellor and Edinburgh MP Alistair Darling calls for an all-party and no party unionist campaign and is being mooted as its leader.   They could do worse.


Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London