A whole new (hard)ball game? 9
So that was the launch of the independence referendum consultation. Not much we didn’t know, and the usual tired, pointless carping from the FUD benches, but there was one very significant new development. The question being proposed by the Scottish government is this:
“Do you agree that Scotland should be an independent country?”
It could barely be simpler or more direct. But the fascinating aspect is the impact the form of the question could have on the legal status of the referendum. The previously-suggested question was rather longer and encased in tortuous legalese:
“Do you agree that the Scottish Government should negotiate a settlement with the government of the UK so that Scotland becomes an independent state?”
The seemingly-technical change is potentially of vital importance. The core dispute over whether the Scottish Government has the legal right to conduct a consultative referendum is the “purpose and effect” of its doing so. The old formulation of the question clearly implied that the Scottish Government would use the referendum as a trigger to actively attempt to remove Scotland from the UK (by opening negotiations with the UK Parliament), and as such the referendum could very easily be held to be exceeding Holyrood’s devolved powers by directly leading it to take action on the constitution, a matter reserved to Westminster.
The new question, however, merely innocently enquires as to the Scottish people’s opinion on the subject, without promising that the expression of that opinion will cause it to take any particular action. As such, it’s difficult to see how it could fall foul of any reasonable interpretation of the law.
Does this mean that Alex Salmond is preparing the ground to face down the UK Government and hold the referendum on his terms – without the Section 30 order that would clear away most possible legal challenges – should the imminent negotiations with David Cameron not turn out to his liking? We’ll be watching with great interest.














