Westminster removes its threat of referendum legal challenge

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  By Bob Duncan

Scottish Secretary Michael Moore has indicated that the UK government has now caved in on its previous stance regarding any challenge to the independence referendum, even if it includes a question on enhanced devolution.

In a statement in the Sunday Mail, the Lib Dem MP said that Westminster would not contest a referendum held by the Scottish Government, without there being a section 30 order in place, even if the ballot included a question on extra powers for the Scottish parliament such as Devo Max.

He said if the Scottish government go ahead and hold a consultative referendum with more than one question, “I am not interested in the UK Government challenging this.  It wouldn’t be for the UK Government to do it, it would be for others.  Anyone could come along and do that.  That is the risk.”

The UK government has the ability to grant Holyrood the power to hold a legally binding referendum on independence using an extension to the Scotland Act which set up the Scottish parliament.  Westminster has offered to do this, using what is known as a Section 30 order, but only if their conditions are agreed to by Holyrood.

Originally, the UK had wanted to dictate the date of the referendum and wording of the question, it’s polarity (whether independence was the Yes or No option) and who would be allowed to vote.  It also wanted the referendum to be run by the Electoral commission (which works for the UK government) and for there to be no question on enhanced devolution.

These preconditions were rejected by the SNP, with the exception of the use of the Electoral commission, which would report to the Scottish government.

The SNP has always contended that it has the right to hold a consultative referendum and that, if Westminster fails to deliver a Section 30 order without strings attached, that it will use this option.  Alex Salmond has also stated that he will not rule out a possible question on Devo Max, at least until the results of his consultation have been analysed.

However, earlier this week, Moore had stated that the UK government was now willing to concede the referendum date, the wording and the polarity proposed by the Scottish Government, as well as the choice of electorate, even if that included 16 and 17 year olds. However, he had insisted that there must still be a single question on the ballot, before a section 30 order could be granted.

At a speech to the National Business Convention in Edinburgh on Thursday, Mr Moore said: “The prime minister has made clear his commitment to meet and resolve matters before the end of September.  I look forward to seeing the first minister so that we can make Scotland’s referendum a reality.

“It’s time to crack on.  Time is pressing.  The sooner we can get the process issues out of the way and get on to the ‘great debate’ itself, the better for everyone.”

Moore also signalled a threat of court action if the referendum were to go ahead without Westminster approval, claiming that the UK government could delay the referendum indefinitely through the new UK Supreme Court.

He stated that he and Alex Salmond were nearing an agreement, which would be concluded by late October.  However, the SNP denied that this was the case.

An SNP spokesman said: “Scotland’s referendum in autumn 2014 must be made in Scotland and decided by Scotland’s parliament – and as we have always said we have absolutely no objection to a Section 30 Order in regard to the referendum, with no Westminster strings attached, which could be agreed very shortly.

“It is only right that matters such as a ‘more powers’ option and votes for 16 and 17 year-olds are carefully and properly considered, which is exactly what the Scottish government are doing.”

The Scottish Secretary’s admission that the UK will not now take court action against the Scottish government, but that others might, could be interpreted in several ways:

  • The UK Government may be signalling that it is up to the Holyrood to organise the election and that it longer intends to try and control the process;
  • or, Michael Moore has simply made a blunder – many political commentators are suggesting he will lose his job in the upcoming reshuffle;
  • or, Westminster will indeed contest a 2 question referendum, but through a proxy (there is a veiled threat to this effect in Mr Moore’s statement);
  • or finally, the UK government is signalling its willingness to sign a Section 30 order without preconditions.

A condition-free section 30 order seems unlikely, however, as Moore goes on to say that Westminster would give the SNP powers to hold a legally binding referendum under a Section 30 order – but only if voters are given a straight choice between independence and the status quo.

He said: “Over the past few months, what we have been explicitly saying is that we want to work with the SNP to deliver the referendum so that it is fair, legal and decisive.

“The alternative to us not having an agreement is not attractive for anybody. It runs the risk of the parliament passing legislation that could be challenged in court. We could end up with a situation where the courts resolve this issue, rather than those of us who live here in Scotland.”

If the first of these options is accurate, and Westminster is signalling an end to its interference, this may see the procedural part of the referendum process come to a conclusion, allowing the political campaigns to get properly underway.

Moore has suggested this may be the case, saying: “The time for process has to end soon, or else people will begin to question what lies behind the time this has taken.

“I don’t believe for a minute the SNP are scared of big debate, or I would hope not.  After all, that is what they have existed for all these generations.  We, along with our colleagues in the other pro-UK parties, are ready for that debate and want it to get under way.”

SNP MSP Alasdair Allan told Newsnet Scotland: “The attitude of the UK Government on this subject never ceases to amaze me.  Of course the Scottish Government want to work with Westminster on finding the best way forward on the detail of the referendum, but that does not , in the SNP’s view, mean that the right of Scotland to choose its own future comes with strings attached.

“Mr Moore’s own stance is more than a little puzzling – his party has been arguing for home rule in some shape or form for a hundred years, but he doesn’t want the option in 2014 to vote essentially for his own party’s position of more powers.”