There is an air of quiet desperation in Whitehall as civil servants and UK government ministers try to out-manouevre Alex Salmond over the referendum. They feel he's been getting away with murder, insisting on holding it at the time of his choosing and with an unspecified number of questions.
Westminster has finally realised that including "devo max" on the ballot paper as well as independence would leave Salmond with a win win - since he would happily settle for fiscal autonomy for Holyrood if independence is rejected, as opinion polls suggest it would be. Hence the threat to take it out of Scottish hands altogether and stage a pre-emptive independence referendum organised by the UK Electoral Commission. After all, as constitutionalists like Oxford Professor Vernon Bogdanor keep telling us, Holyrood doesn't have the legal authority to run a binding referendum because the constitution is reserved to Westminster. Why should England dance to the Nationalist tune? It is a complaint uttered by UK commentators and academics around bodies like the Constitution Unit at UCL, who really think it's time to jolly well stand up to these separatists, and beat them at their own game
The Labour minister, Margaret Curran, has wisely tried to head off this pre-emptive referendum which would of course play directly into the hands of the SNP. What better than for London to be dictating the constitutional destiny of Scotland? The SNP is hoping against hope that Westminster will make their day. The problem with the metropolitan political and academic elite - who only read the ultra-unionist headlines in The Scotsman - is that they have very little understanding of political dynamics north of the border, or how much attitudes have changed here over the last five years. The SNP has an absolute majority in Holyrood, and any attempt to impose a referendum would be blocked. There would have to be a consent motion passed by the Scottish Parliament for any legislation initiating a Westminster-led referendum.
So that is a non starter. The next trick is to introduce a Clarity Act such as the one passed by the Canadian Government in 2000, though never recognised by the province of Quebec which inspired it. This was the product of an examination of the legality of secession by the Canadian Supreme Court, and was seen by many Quebecers as an attempt to stifle their independence movement. The Clarity Act states that subordinate regions or principalities have no legal right to secede. However, if a referendum is passed in which the question is clear, and there was a substantial though undefined majority, then the other states in the union have a duty to respond to the demand for autonomy. It is a masterpiece of legal sophistry, open to almost any interpretion, from sending in the tanks to endorsing independence on the basis of a majority of one. The latter is how Quebec separatists see it.
The Clarity Act, a reaction to the knife-edge 1995 Quebec referendum has never tested, so no one really knows what it means in practice. It is the work of constitutional lawyers and, like economists, if you put twelve of them in a room you will get twelve different interpretations. But any attempt to use constitutional law to foil the Nationalists will backfire as assuredly as holding a pre-emptive referendum. The SNP holds most of the cards. Unionists would be far better advised to sit on their hands, and wait to see what Alex Salmond comes up with in 2014 – though I suspect that we'll be hearing about the question or questions long before that.
