SNP ministers will be bound by law to cease campaigning for independence 28 days before the referendum, but UK ministers can legally promote the Union until the polls close, according to legal experts.
Alex Salmond and the rest of the Scottish Government could face a judicial review if they made any pronouncement related to the referendum during the 28 days of “purdah”, or silence, whereas the UK government would only be bound by a “gentleman’s agreement” to stay silent, Holyrood’s referendum bill committee was told.
The UK government made a commitment to observe the 28-day rule in the Edinburgh Agreement last year, but any fallout for breaching this “would be more political than legal”, Michael Clancy, of the Law Society of Scotland, said.
In a submission to the committee, the society questioned whether Westminster would follow the same purdah rules.
SNP MSP Linda Fabiani said: “Would that be a veiled suggestion that we should check up on this and perhaps, as a committee, get this in writing from the UK government?”
She said the Edinburgh Agreement set out the conduct of both governments during the referendum and “is very much a mutual respect and gentleman’s agreement”.
Mr Clancy, the society’s director of law reform, said: “The Edinburgh Agreement does contain this [28-day] provision and it’s mentioned in the policy memorandum, so one can take that as being: if it’s under the signature of the Prime Minister with the First Minister in attendance and signing too, then people understand what’s what.
“I think there is distinction between a statutory provision and something in an extra-statutory agreement which people may want to flesh out.”
Later, Mr Clancy said that “there would be a breach in the law” if the Scottish Government broke the 28-day rule. “It means the Scottish Government would be subject to judicial review for any breach of the statutory duty,” he said.
“The UK government has to act reasonably, but there would be no statutory obligation on it.”
Professor Richard Wyn Jones, director of the Wales Governance Centre at Cardiff University, insisted the same rules had to apply to both sides in the referendum debate.
“In my view, that would be a resounding yes to that,” he told MSPs.
A spokeswoman for the Electoral Commission in Scotland confirmed the UK government would not be bound by the 28-day rule in the Referendum Bill, nor by similar prohibitions that regulate national elections.
The 28-day rule has been adapted from a similar restriction in the UK Political Parties, Elections and Referendums Act (PPERA), which regulates UK-wide polls. The referendum will be regulated by the Scottish Independence Referendum Bill, not PPERA, meaning UK government pronouncements will be exempt from both, the commission said.
Ms Fabiani said: “The Edinburgh Agreement firmly commits the Westminster government to observe the same purdah arrangements as the Scottish Government, and people in Scotland will rightly expect Westminster to stick to those terms.
“Any attempt by Westminster to violate the terms of that agreement would be a gross misjudgment and a clear breach of their responsibility to help ensure that the referendum is held in a fair way.”