The Scotland Office consultation on the independence referendum, which closed last Friday, called for views on facilitating a legal, fair and decisive referendum. In taking up the invitation to respond, we share a desire for ensuring that the referendum process is fair, and the outcome decisive. We also recognise the benefits of holding a referendum whose legal competence is beyond doubt. But we depart from the tenor of the Scotland Office view, set out in its consultation document, in some respects.
First, on the legality issue. Several prominent legal scholars have argued that a referendum whose intention is to consult the Scottish electorate on its preference for the future governing of Scotland would be within the competence of the Scottish Parliament. Others, including the Advocate General for Scotland, have argued otherwise.
It would be undesirable for the issue of the Scottish Parliament’s right to hold a referendum to be contested in the courts. Use of the order making power provided in the Scotland Act 1998 can be a useful mechanism to put the issue of competence beyond doubt. Freedom from competence issues and constraints would also make it easier to devise a question whose wording is more likely to produce a clear and unambiguous result.
But political legitimacy may ultimately matter more than legal certainty. In light of the SNP’s resounding victory in last year’s Holyrood election, the Scottish Government, with the consent of the Scottish Parliament, has the political legitimacy to hold a referendum on Scotland’s constitutional future. The UK government has a role to play in this debate; after all, the future of Scotland also affects the future of the UK. But it does not have the mandate to legislate directly in the UK parliament for a referendum – one of the proposals in the Scotland Office consultation – or to dictate the terms on which that referendum is held.
It is important, however, that the process is seen as legitimate by both governments. The oversight arrangements for the referendum also have to be recognised by the electorate as robustly independent of any partisan viewpoint and capable of delivering an accurate count of voters’ preferences on the proposed alternatives.
The UK Electoral Commission is a robustly independent body with experience in overseeing referendums. In the absence of a Scottish Electoral Commission, it is the most appropriate body to oversee a Scottish independence referendum, subject to it reporting, for this purpose, to the Scottish Parliament. In the 1980 and 1995 referendums in Quebec, this role was performed admirably by the directeur générale des élections, the provincial counterpart to Elections Canada.
The form and number of questions has been a matter of some debate. There appears to be growing pressure for the inclusion of a question on stronger devolution within the UK.
The UK government’s position is that independence and devolution are two different issues and should be considered separately. Their strong preference is for “a single straightforward question”.
The Prime Minister and the Scottish Secretary have indicated their willingness to revisit the current devolution settlement with a view to strengthening devolution, but only after an independence referendum and on the assumption that the latter results in a No vote.
The Scottish Labour Party and the Scottish Liberal Democrats are also engaged in their own separate inquiries which seem likely to recommend stronger systems of devolution, though they, too, have suggested that these are matters for after an independence referendum.
We are concerned that these pledges – even if accompanied by detailed proposals for reform – would prevent voters in the independence referendum from making a fully informed choice. A promise of reform to the devolution arrangements following a No vote risks creating two types of No voters: those whose No vote expresses a commitment to the status quo, and those committed to a change the Prime Minister, the Secretary of State and others have held in prospect. Just as it is imperative for the meaning of a Yes vote to be unambiguous, so too is it important for the meaning of a No vote to be clear.
We share the view that the question – or questions – posed should be clear and easily understood. The Electoral Commission is best placed to scrutinise the clarity and intelligibility of the question and ballot paper, based upon appropriate research and testing. But having an additional option in the referendum ballot need not compromise the clarity of the question or the decisiveness of the outcome.
There are a variety of systems used outside the UK which have delivered unambiguous and intelligible outcomes from multiple options. Among these, a system especially pertinent to the Scottish debate is that which has been used in referendums on electoral reform in New Zealand – and the forthcoming referendum on Puerto Rico’s constitutional status – which includes two questions posed simultaneously: the first question to solicit consent for a change to the existing arrangements, and the second to determine the form that change should take. The responses to the second question – which could be answered by any voter regardless of their response to the first question – only come into play if the first question produces a majority for change.
Applied to Scotland, this second question could include independence as set out by the Scottish Government, and an alternative proposal for strengthened devolution within the UK, assuming agreement can be reached on what that alternative would be. As only two options would be presented in the second question, one of them would surely secure more than 50 per cent of the vote. We do not agree that such a system, or other alternatives drawn from international practice, if given sufficient public explanation by the Electoral Commission, would be too difficult for Scottish voters to understand or unable to produce a clear and legitimate referendum outcome.
Some have argued that reforming devolution doesn’t require a referendum. The reforms proposed by the Calman Commission, and largely incorporated in the Scotland Bill, will result in significant changes to the devolution settlement without being subject to a referendum, if they are approved by both parliaments. But there are considerable political risks in making radical changes to devolution without the explicit consent of the Scottish electorate, especially when those changes might affect levels of taxation and benefits, as seems likely.
The Blair government’s decision to make its commitment to devolution subject to a referendum was controversial at the time. But, with hindsight, the public consent that the 1997 devolution referendum gave has been an important basis of the Scottish Parliament’s legitimacy since its establishment. Any significant reform of that system of devolution should arguably also be subject to a referendum. This would help to ensure that the decisions taken by Scottish parliamentarians in the name of the Scottish people have their consent.
The referendum on Scotland’s constitutional future is the appropriate opportunity to revisit the original constitutional settlement, and to determine the constitutional preference of the Scottish people, whether for independence, strengthened devolution or the status quo. A 2014 timetable gives us time to get this right – to test, and re-test if necessary, the questions and back them with clear programmes for alternative constitutional futures.
• Dr Nicola McEwen is co-director of the Institute of Governance
• Dr Ailsa Henderson is a senior lecturer in politics
• Dr Eve Hepburn is deputy director of the Academy of Government
• Professor Charlie Jeffery is professor of politics
• Dr Wilfried Swenden is a senior lecturer in politics
• This article draws on the collective response to the Scotland Office consultation by the authors, who are academic experts on devolution at the University of Edinburgh. The response presents the independent position of the authors and is not a formal position of the university.
The full response can be accessed at: institute-of-governance.org