Fundamental constitutional change should only happen when it’s the settled will of the people, writes Alexander McCall Smith.
When I was a boy, if one wanted to settle a playground dispute, or if you wanted to allocate some contested item, you resorted to a best of three competition. Anybody could win a single, one-off competition, but you had to be a good bit luckier to come out with the best of three. You deserved to win then.
This may have some bearing on the tricky issue of referendums. Nobody needs to be reminded that since 2014 we have had two highly divisive referendums (we are also divided on whether the plural is referendums or referenda – an issue that has probably split families and broken friendships just as the referendums themselves have done.)
Some people take the view that neither of those referendums should have been held. That strikes me as being a somewhat undemocratic view: both of the issues involved were matters of fundamental constitutional significance, and it is quite right that the electorate should be sounded out for its views.
However, a referendum provides a snapshot – it does not necessarily provide a settled view. Electorates are fickle and might register a protest vote in a referendum. They might also change their mind, particularly when the consequences of their earlier vote are graphically revealed to them. This means that result of referendums do not necessarily reflect the views that an electorate might have held with any consistency over a long period of time. And it is exactly that sort of view that we need to ascertain – a settled, long-term commitment to a particular position.
The difficulty with these two referendums we have had is that they addressed issues on which the population appears to be fairly equally divided. A majority was achieved for one view in each case, but it was not an overwhelming, knock-out majority. It was assumed, though, in each case that the referendum was to be decisive and was not to be repeated shortly thereafter. In Scotland that fact was specifically acknowledged by all parties. However, the referendum as a means of deciding matters in that clear and conclusive way does not seem to have worked.
In each case – that of Scottish independence and European Union membership – there are large sections of the population who do not think that the referendums in question should be the last word on the subject. As a result, a substantial proportion of the population is disaffected.
We have become a markedly divided society – not one that is at ease with itself. Part of the reason for this is that we wandered into these referendums without thinking about whether a single referendum was really the solution we wanted it to be. Both these referendums were conceived of by some as being a way of telling some people to shut up.
Currently it is the Brexit issue that most starkly reveals the problems of a single snapshot referendum. But is there a solution? Yes, dare one suggest that all referendums should be repeated after, say, five years have elapsed. The first referendum would decide nothing – people would really have to mean it, and vote accordingly in the second referendum, in order to make fundamental constitutional change.
That would mean that a settled, long-term view could emerge, giving a result that nobody could argue with. It could be a concomitant of such a system that no referendum on the issue in question could then legally be held for at least 20 years. Of course people would argue that this merely prolongs uncertainty, but would it? What have we had over the last few years but crippling uncertainty?
But before supporters of a second referendum on Brexit or independence agree too loudly, the next referendums on these issues would have to be treated as the first in the new system, and therefore subject to repetition in five years’ time. They won’t like that, but fairness would require it. It would also give us much-needed breathing space.
This column first featured in our sister title iNews.