"We will just run our own referendum... And it will have two questions."

A queer sight yesterday, in the land beyond the paywall.  The topic is the much-mooted s30 order under the Scotland Act 1998. To be laid before Westminster and Holyrood by the Secretary of State for Scotland, the order will potentially buttress an independence referendum from being challenged and waylaid in the courts - but the London government also look likely to try to use the order as a mechanism to dictate the number of questions which the poll can competently pose, its timing, the extent of the franchise - and so on.  

As regular readers will know, I've blogged ad nauseum on the debatable topic of the referendum's legal competence for the last couple of years.  For those of you new to the controversy, I composed this (hopefully clear and accessible) guide a while back, in response to an intervention by Professor Adam Tomkins.  But since Michael Moore published the results of the UK Government's consultation - all's been mum on the topic, until yesterday. Hamish Macdonell had a report in the Times, quoting a "senior SNP source" to the effect that... 

"Time is running out. There is a very tight timetable here. We have to have the [legislative order] soon. It has to go through both Houses in Westminster and the Scottish Parliament and it has to clear all three before we can start the process of the referendum Bill. The Bill is timespecific too, because there has to be a six-month gap after it has passed the Scottish Parliament before the referendum itself. The UK Government needs to deliver the order soon. If it doesn't, then we will just run our own referendum on the day of the next election. And it will have two questions."

An odd little intervention, this, marked most by the bravado of its conclusion.  Last week, I was airing my foggy-eyed inability to interpret quite what the SNP leadership's game really is on any second question.  The piece reads like a considered briefing by those involved, and contrives still further to occlude an easy interpretation of what the nationalists' preferred poll might looks like. The article continued - apparently paraphrasing unquoted sources from within the Scottish Government...

"If the Scottish government holds its own referendum without formal legal backing, it runs the risk of being taken to court. But Scottish ministers do not believe that the UK Government would do this because of the possible political backlash north of the Border. 

However, the ministers believe that they may be taken to court by somebody else - maybe a concerned citizen with the necessary financial backing.

But, even if they were to lose in court, they believe their referendum would carry political authority, even if it had no legal standing, and this would be enough to force the UK Government into delivering whatever the people had voted for in the referendum."

The central folly afflicting this splendid wheeze is - as I've noted before - if the referendum is challenged in court, it'll almost certainly happen before the poll, not after it.  If this happens, the referendum will in every likelihood find itself stalled by judicial order until the courts have finished scrutinising the legislative competence of the measure under the Scotland Act. It is patently clear that the result of a referendum which does not take place cannot enjoy any "political authority", whatever results it might have generated if the question had been put. 

This is tricky territory for both nationalists and unionists.  While already we see the two campaigns forming up, rolling out their preferred narratives and poignarding each other's perceived weaknesses, essential questions about what choice the Scottish people will be given are still outstanding. They seem confident that their respective answers are "Yes" and "No", but must needs still be uncertain about the question - or questions? - they're answering.  

In the cthonic regions beneath all of their political calculations, for all of their outward confidence, the susceptibility of their measures to legal challenge puts nationalists in a pretty predicament if the SNP reject Moore's proposed 30 order as overly restrictive.  The only substantial reason for doing so, it seems to me, is if the Nationalists are inveterately set on asking a second question on "devo something". And as we've seen, there are a range of plausible interpretations of their conduct hitherto on that score.  Equally, Moore and his colleagues cannot be indifferent to such a situation either.  As his colleague Jim Wallace has explained, the coalition's primary goal in deploying a s30 order was to avoid the situation where a referendum gets tied up in court.  If they fail to persuade the SNP to adopt their text, and the party crash on anyway, damning the odds of a legal challenge and damning the eyes of the jackanape who'd dream of pursuing such litigation, Moore will have failed in his primary goal.  In the event of litigation, expectant eyes will assuredly turn to Westminster too.  What the devil would the Tory-lead government do?

Moreover, while the coalition is keen not to be seen to "dictate terms" to Scottish institutions, it is nevertheless keen to do precisely that, to ensure a voters' roll which excludes those between sixteen and eighteen, and more urgently, which excludes the possibility of posing any second question on enhancing devolution alongside independence.  After his Hugo Young lecture to the folk at the Guardian in January, I had the opportunity of asking Alex Salmond directly whether he'd prefer (a) a simple yes-or-no independence referendum that is legally secure or (b) a multi-option referendum, including devolution-max, which would not enjoy the same level of legal security, and would almost certainly face challenge in the courts? With customary dexterity, the First Minister studiously avoided furnishing me with a direct answer.  The Times piece reminds us but the question remains urgent, and unresolved.