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.