Photo: AFP/Getty ImagesLondon may have seized the initiative in the Scottish independence referendum debate, but it has by no means made certain it will get its way.
Yesterday the Scotland Office launched a consultation paper on Scotland's constitutional future, outlining the way in which it proposes to give the people of Scotland their say on this key issue for the United Kingdom's future.
Its biggest play is its attempt to scotch, once and for all, the distinction between a 'binding' and an 'advisory' referendum. This, according to Scotland Office officials, is nothing but a red herring. Whitehall lawyers believe they have a cast-iron case which they believe would stand up in the supreme court: any referendum held by the Scottish parliament would be illegal, full stop.
That would be a huge setback to the Scottish National party, which has been sniffing around the issue of an advisory referendum for some time. Take its 2007 paper on the issue: "At present the constitution is reserved, but it is arguable that the scope of this reservation does not include the competence of the Scottish government to embark on negotiations for independence within the United Kingdom government". Today Alex Salmond cited the leading Scottish constitutional textbook to suggest that the UK government's position might be contestable, after all. Supreme court, here we come.
The legitimacy of a referendum held under the aegis of the Scottish parliament is the first battleground being fought over. But it is merely an opening gambit in the game now being played out in Edinburgh and London. Establishing the illegality of a Scottish parliament referendum merely opens up the next phase of the struggle. It is the necessary precursor to London dictating the terms of the referendum to Holyrood.
The motivation for this is utterly political. All three Westminster parties want to keep Scotland part of the UK. By controlling the rules of the game before it is even begun, they hope to make it that much harder for the SNP to win over the Scottish people to their way of thinking. That is why Salmond is so determined to resist the imposition from above.
There are two critical conditions under which the coalition government would permit a referendum to take place. Firstly, that the ballot paper only offers the voter two options (not the three preferred by the SNP). And secondly, that "the date of the poll must be no later than ***". The asterisks are yet to be filled in, but the UK government says it would prefer the backdate to be "sooner rather than later" - around 18 months, probably. Again, that is viewed as being against the interests of the nationalists. The SNP has always tried to put off a referendum until as late as possible in its parliamentary term, which ends in 2016. Yesterday evening Salmond indicated he would prefer autumn 2014.
The Houses of Parliament in Westminster, as well as both governments and the Scottish parliament in Holyrood, would all have to agree for this to take place under the terms of a section 30 order stemming from the Scotland Act 1998. That means the SNP could block the London government's preferred solution. Its resistance could be futile, though. If it won't play ball there is a fallback option - of amending the Scotland bill currently working its way through Westminster.
There remain many question-marks which are not yet resolved. Most obviously, can Salmond's clear indication of resistance succeed? If push comes to shove, could he attempt to go ahead regardless? There is a legitimacy gap between what is legally acceptable and what is politically acceptable, after all. So perhaps the SNP could get away with pressing ahead with a referendum, in outright defiance of the UK government's legal arguments.
If that did happen the UK government's best course of action might be to block the referendum from taking place at all. But, as always, the government's lawyers are utterly confident in their ability to win in the supreme court. Critically, when aspects of Scottish legislation have been challenged in the past their implementation has been delayed. They would hope the same would apply when it came to a referendum. But even here there are no guarantees this would definitely be the case.
The Scottish independence referendum was never going to be simply a case of a reasoned, rational debate about the future of the United Kingdom. Long before the official contest starts, the two sides are already at loggerheads.
Yesterday's move by London is aggressive and confrontational. If the SNP follows through on its initial suggestions that it will take on the might of the Whitehall law machine this referendum could become as well known for the legal struggles surrounding it as for the terms of the debate itself.
The opening salvo has been fired. The SNP must decide whether to roll over and accept bullying from London, or back its initial fighting talk with a determined struggle which could irretrievably muddy the terms of its referendum campaign. It is not an especially edifying choice, whichever way you look at it.
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