David Maddox: Who plays the part of referee in the referendum is big question right now

THE issue of who runs the referendum on Scottish independence is a crucial one because not only will it set the ground rules for the campaign which could favour one side or the other but it will also decide whether it is seen as legitimate by the public at large.

The obvious solution is the Electoral Commission, which runs most elections in the UK as well as major referendums. But legally, if the referendum is only an advisory one organised in Holyrood as the SNP wishes, then the Electoral Commission currently cannot be involved.

However, an offer made by Tory Scotland Office minister David Mundell to change the law to allow it to be run by the Electoral Commission has been rejected by the SNP Scottish Government which wants to have an ad hoc Scottish body to do it instead.

There has been much speculation over why the SNP has taken this position given that the Electoral Commission is a highly respected and recognisably independent and neutral body with vast experience in such matters, not least the recent referendum on electoral reform.

It has clear rules which all parties stick to and is prepared to run a referendum.

The commission though is not without its critics, not least devolution expert Alan Trench, who argued that it was not robust enough in running the recent Welsh referendum and should have acted more like a rugby referee willing to get in and pull the various fighting bodies out of the ruck.

Certainly that might be the sort of approach needed to tackle the two sides in the independence referendum which, it can almost be guaranteed, will not be a very friendly affair.

But somehow it is hard to believe that a robust referee is high on the priorities of the SNP when thinking about the conduct and rules of the referendum. Instead, the donation of £1 million from the lottery winner Colin Weir might provide more of a clue, especially as he and his wife Chris have another £160m or so from their famous win.

A Scottish body set up by an SNP Scottish Government may be more lax about setting a spending cap for the campaign. Crucially there may not be as strict rules about people employed on the public purse, as researchers for MSPs for example, being diverted to the campaign.

In other words the body could agree a set of rules which give the SNP far more flexibility to use the resources it has at hand to win.

However, the rules could also be beneficial to the other side as they try to raise cash and bring in campaign support.

But the question of legitimacy will remain and it could be one of the points which sees an advisory referendum end up in the courts.

Even if the courts don’t block it then a body created and appointed by Alex Salmond will have problems being accepted as neutral especially if it rules in favour of the SNP in disputes.

There is some doubt over who would serve and some distinguished figures might rules themselves out because of the legitimacy problem.

It still leaves the Electoral Commission as the obvious body to run a referendum, advisory or otherwise.

It is this more than anything else which may be the cause or excuse for Westminster stepping in and taking the referendum away from Holyrood and setting it up as a legally binding one instead.