A Referendum Act

Alasdair Galloway

The focus of the weekend was the election of the new Tory leader, and as such the new Prime Minister. However, another focus was Liz Truss suggesting she might introduce a “Referendum Bill” with certain requirements before a vote could be held, and also about what would constitute a majority.

In 2014, Alex Salmond expressed no surprise about “the Vow”, saying that it was straight out of what he called “the Canadian playbook” – the strategies used by the Canadian government to win the independence referendum in Quebec in 1995, albeit only just (less than 1%).

However, more interesting from our point of view for the future is what Canada did after the referendum, and in particular its “Clarity Act”. I went into this in some length in an article in February this year which you can find here (https://talkingupscotlandtwo.com/2022/02/08/the-canada-playbook-learning-from-quebec/).  

There were three important p0wers taken by the Federal Canadian Government after their narrow escape in Quebec. The Act

1.     gave the (Canadian) House of Commons the right to determine if a referendum question was clear, requiring that it should refer to “secession”;

2.     gave House the right to decide if an achieved majority was a “clear majority”, implying some sort of supermajority; and

3.     allowing the House itself to override a referendum decision if it felt the referendum violated any tenets of the Clarity Act.

The question

While a good deal of outrage has been expended on the issue of supermajority proposed by Truss (at least 50% of the electorate to vote Yes for a Yes vote to be determining, so shades of the Cunningham amendment more than 40 years ago), one thing that is important to observe is that Westminster has already taken the powers necessary to achieve control over the question to be asked (assuming an agreement for a referendum). The powers are in the Elections Act.

We know too – because they are not shy of telling us – that Scotland in Union have trialled their own question – “Should Scotland remain part of the UK, or leave the UK?” with Remain/ Leave responses. Even though in Canada that second response would be “secede from the UK”, SIU have found this formulation to their advantage. In its most recent outing this returned support for remaining in the UK of 58%. It has been as high as 60% but no lower than 55%. In the 10 times it has been used since 2016, the average support for remain is 55.3%. (https://en.wikipedia.org/wiki/Opinion_polling_on_Scottish_independence#Polling_on_a_second_independence_referendum).

In SIU’s most recent polls, Remain scored 58% (don’t knows excluded), while in the more usual Yes/No question poll, at about the same time, No still led but only marginally, on 51%.

Complaints about “changing the rules”, that SIU is looking for a question that advantages them, and by definition disadvantages the Yes side, are obvious. Indeed, this was the First Minister’s earliest response to the news of Truss’s proposals.

The problem is that the “referee” (the Electoral Commission) is under, if not the control, then the significant influence of Westminster through the device of a “strategy and policy paper” written by the responsible Minister.

In both the Brexit and Scottish independence votes the Electoral Commission has required changes to the originally proposed questions because both questions, they felt, were not neutral. With government standing behind them, will neutrality or political requirements be their defining consideration?

Of course, SIU dispute this, arguing the 2014 question used was biased. They point out the original Brexit question – “Should the UK remain in the UK”, with Yes/No responses – was changed to “Should the UK remain a member of the EU, or leave the European Union” with “Remain a member of the European Union/ Leave the European Union” responses. They argue from this that the Commission are against Yes/No responses, when this is not the case. The Commission’s problem with the original version was that it only mentioned one side of the debate – Remain – and it needed to make clear the UK’s current membership of the EU.

https://www.electoralcommission.org.uk/who-we-are-and-what-we-do/elections-and-referendums/past-elections-and-referendums/eu-referendum/testing-eu-referendum-question

In other words, Yes/No was not an issue for the Commission. However, when the ref is in the pocket of one of the teams, what can we expect? We know the position that will be adopted by the Unionist side, and the change in their constitutional position will possibly influence the Electoral Commission, which itself observed that their position following the Elections Act is “not consistent with the role that an independent Commission plays in a healthy democracy” as it would “give current or future UK governments the power to direct our work, and may lead the public and campaigners to believe there had been political interference in the way we operate. .. It could also affect the advice and guidance we provide to electoral administrators, parties and campaigners, and the UK’s parliaments.”

The vote

The notion of a supermajority is one that has been in the public domain for some time. For instance, taking the Herald as a record of note (I know, I know!) its Letters page is from time to time the stage for letters from such luminaries as Peter A Russell, arguing for a supermajority of some kind. There are three such letters there this morning – Alexander McKay, Dennis Forbes Grattan and Alan Sutherland. In fact, what Truss has suggested – 50% of the electorate – is actually quite liberal compared to some of the suggestions there which have been as high as 2/3 or more.

However, for comparison, the Brexit vote got nowhere near 50% support by the electorate as a whole – in fact it was less than 40%, but nonetheless, here we are.

Moreover, there won’t be a vote unless there was evidence that “60 per cent of voters want a new referendum on independence before the UK Government would even consider it”. This begs two difficult questions

•       what evidence? Even if polls showed more than 60%, would a single one less than that sink the whole thing?

•       Even if every single poll shows support at 60% at least, all Westminster is required to do is “consider it” before enunciating that “now is not the time”.

So, we can have our independence if we can get 60% of the population to agree to a new vote, and 50% of the electorate vote Yes (or the response to an SIU type question). But even then if Westminster decides “now is not the time”, then the whole thing is sunk.

6 thoughts on “A Referendum Act

  1. The whole thing is sunk only if we think a WM sanctioned referendum is the only route to independence. Operating under the rules of devolution and domestic law will always give WM the upper hand.

    But as the UK itself understood in the case of independence for Kosovo, where it argued Serbia had no say, independence is a matter for international law, and there are routes to independece for Scotland that follow this path.

    Liked by 3 people

  2. Great article – thanks. A quick comment: I agree with Bill Laing above, if we continue to grant WM ultimate authority over us then any result will somehow end up in the null and void tray. We lost that chance back in 2014 and even then, the spirit of fair play didn’t last the course the Vow for example.

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  3. Remember all the talk during brexit about bringing sovereignty home, or taking it back, I can’t remember exactly all the gibberish spoken and written about this at the time, what it acknowledged though was clear, you enter into a treaty you cede some level of state sovereignty. The Treaty of Union created a relationship between Scotland and England that was diametrically opposite to the relationship the new state would have with each and every colony, I include Ireland and Wales under that heading with no offence intended. Westminster was and still is the De facto central parliament of the empire, despite the fact it has passed a multitude of acts for each of the former colonies which in law says they won’t legislate for those former colonies, but legally they could because no westminster parliament can be bound by a previous parliament. Absolute sovereignty, only it’s not. The absolute sovereignty of the English Parliament was ceded to Scotland by the acceptance of the Claim of Right as a condition of the Treaty being signed, the union parliament has less power than the 2 parliaments which combined to create it. The union Parliament came into existence subject too and answerable too Scots Constitutional law, clearly demonstrated by the Inner house of the Court of Session during the illegal or was it unlawful prorogueing of parliament. Whatever action the halfwits of the union parliament take to either prevent or ignore Scotland’s vote can and will be ignored because that right was ceded to Scotland by the 1707 English parliament.

    Liked by 1 person

    1. This is interesting. Following the work of Salvo (salvo.scot) I’ve been trying to fit all the pieces together in a diagram to aid understanding. As I see it the UK Government gets its authority from the Treaty of Union, which was a creation of the two sovereign states that signed it. A simple hierarchy might have Scotland and England in equal status at the top, followed by the Treaty of Union, followed by the UK Government. So, in terms of legal superiority, Scotland and England are legally superior to the Treaty of Union which is legally superior to the UK Government. I apologise if my terminology is not correct.

      The Treaty of union embeds the Scottish Claim of Right which makes the people of Scotland sovereign and superior to any government, including the UK Parliament and Holyrood.

      Is this a kind of double insurance because Scotland (and England) as discussed above are already superior to the UK parliament?

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  4. How can anybody call this a democracy, it is a rigged English colony, How can anybody say it is a partnership of equals now .Oil ,Gas and Electricity is our curse England is bankrupt both morally and financially they will do anything to keep up us in there coercive exploitative Union run for their benefit.

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