Quoth the Herald this week, in a piece headlined "Cameron under pressure to stage vote on independence"...
"The referendum talks centre on the issue of a Westminster parliamentary order, which UK Government ministers insist is necessary to enable Holyrood to hold a legal poll given that Westminster is the UK's constitutional authority. However, the so-called Section 30 Order is being offered on condition there is just one in- out question on the referendum ballot paper, a condition Holyrood is not willing to accept. Mr Cameron is equally adamant he will not accept a two-question referendum, believing it would lead to confusion and could be challenged in court." (my emphasis)
If the Prime Minister believes that, then he's poorly advised or playing the tricksy lawyer. At the risk of rehashing familiar themes, Holyrood enjoys legislative competence under the Scotland Act over all things not explicitly reserved from it to Westminster. As the UK Supreme Court have confirmed in AXA General Insurance v the Lord Advocate, "Acts of the Scottish Parliament are not subject to judicial review on the grounds of irrationality, unreasonableness or arbitrariness" at Common Law (Lord Hope, para 52). Instead, Holyrood's powers are limited by section 29 of the Scotland Act, and the institution cannot legislate contrary to the rights enshrined in the European Convention on Human Rights, in conflict with the laws of the European Union, or adopt laws which "relate to reserved matters".
And here's the rub. Under section 30 of the Scotland Act, by Order in Council, Cameron's government is empowered to vary the list of matters reserved to Westminster, as they are set out in Schedule 4 and 5 of the Scotland Act. This doesn't require primary legislation in Westminster like the Scotland Act 2012. Her Majesty's Ministers are able to lay an order before both houses of parliament, and in a trice, with the consent of Lords and Commons, the list of reserved matters and statutes protected from modification is amended. Sounds terrifically easy, doesn't it? By canny deployment of a single piece of paper, Westminster could give Holyrood the power to amend the Misuse of Drugs Act, for example, or re-empower the Scottish Parliament to make rules and regulations respecting Antarctica.
Essentially, this is what is being proposed for the independence referendum. But why? As I've outlined at greater length before and elsewhere, as is, the referendum faces a potentially tricky legal predicament. Both "the Union of the Kingdoms of Scotland and England" and "the Parliament of the United Kingdom" are matters explicitly reserved to Westminster in the Scotland Act. For a referendum Bill from Holyrood to be intra vires, it cannot "relate to a reserved matter". An independence referendum, or indeed a question asking the public about further devolution of powers from Westminster to Holyrood, arguably - arguably - "relates to" these reserved matters, putting its legality in doubt.
Contrawise, we can contend that referendums are not reserved at all, that a referendum Bill has no domestic legal force to enforce independence or further devolution, amends to existing enactments - and accordingly ought to fall within Holyrood's purview and powers. Those are the essential arguments, which are likely to be aired in court, if Westminster doesn't take the opportunity afforded by section 30 of the Scotland Act to clarify that referendums on reserved matters - or at the very least, referendums touching on protected constitutional concerns - aren't powers reserved from the Scottish Parliament. Westminster need not do so. It may try, as proposed earlier this year by Michael Moore, to manipulate this legal uncertainty, employing it in a gambit to force Holyrood to ask only one question, on peril of legal challenge and delay.
The critical point is this: it is within the power of UK ministers to expose or insulate any referendum - asking one question or two - from the ravages and delays of litigation. It need not take on the burden of legislating for a referendum itself. All that is required in a section 30 order, shorn of unacceptable conditions. For the coalition, the question is how brave they are feeling, to enforce their own preference for a single question. They ought to be frank about that. This is entirely about dictating their own preferred referendum terms to Holyrood, and no amount of cavil or weasel-rhetoric from Cameron, Moore or Jim Wallace changes that.
With all that in mind, come back to Cameron's reported "concerns". We can see that it is within the Prime Minister's capacity to immunise the independence referendum from legal challenge, whether only a single question is posed, or another is also asked, concerning enhanced devolution. We've also seen that there is no legal basis for challenging Holyrood's referendum, save for section 29 of the Scotland Act. While Cameron may argue - as others have argued - that a multi-option or multi-question referendum risks confusing people - it is simply fiction to protest that a two question referendum is peculiarly susceptible to legal challenges which a single question referendum won't face.
Two roads diverge in a forbidding wood. The one path brings us directly to our destination, the other ranges circuitously about the forest, adding hours to our journey. Cameron is like the man who tries to dissuade the weary traveller from taking the shorter path, warning him that the way is trapped and perilous, but who busies himself, maintaining the selfsame tripwires which he warns you of, wishing to be well thought of. Trapper Cameron's passive voice is canny but transparent poppycock. A two question referendum "could be challenged in court" if and only if he and his gambling cronies in the UK government try to make Holyrood work their will with a mousetrapped section 30 order which tries to ordain that only one question is posed in the referendum. To imply anything else is rank humbug, devious hogwash.