Liberal Democrat finance spokesperson John Ferry recently said of the SNP’s de facto referendum gambit-
“It would be entirely reasonable to request a UK constitutional convention with one aim being to secure a defined legal route to secession. What is not reasonable is re-writing the constitution of the state on the fly & in line with your party’s narrow political aims.”
We now see hints from Lizz Truss that any future referendums to break up the UK would require a majority of the electorate, not just a majority vote, to enact constitutional change.
“Senior UK Government ministers are reportedly considering introducing a Referendum Act which would require more than half of the entire Scottish electorate to vote for independence, rather than just a majority.“
https://www.scotsman.com/news/politics/uk-ministers-consider-new-law-to-wreck-indyref-campaign-3830448
This also could be criticised as “re-writing the constitution of the state on the fly & in line with your party’s narrow political aims.”
There is a better way
I believe we can find a legal, democratic path to choosing, or rejecting, independence. One that meets international norms uses principles the SNP claim to support and is robust enough to protect territorial integrity reasonably. It also answers the nationalist grievance that they don’t see a clear legal path to breaking away. Such conditions, such as a ‘legal route to secession’, would be defined by a ‘Clarity Act’.
It would be hard for Nationalists to deny the utility of a clarity act based on conditions they have shown to be acceptable – it gives them the democratic path they demand, curing a grievance. It would also be in the interests of Unionists – giving us stability and reducing uncertainty. Primarily it would be in the interests of all Scots – allowing the argument about the constitutional paths to be settled. It would fix the standards that nationalists would need to make their case, breaking us out of the ‘Neverendum story’. It removes an apparent barrier from our representatives focusing on more immediate responsibilities of government.
What is a clarity act, and why have one?
The second independence referendum of Quebec in 1995 was hugely financially damaging to the province as the increased instability led to capital flight. In response, the Canadian government introduced a ‘clarity act’ codifying some factors of potential secession.
The key achievements of the Canadian Clarity Act:
- Gave the Canadian House of Commons the power to decide whether a proposed referendum question was considered clear before the public vote.
- Specifically states that any question not solely referring to secession is to be considered unclear.
- Gave the Canadian House of Commons the power to determine whether or not a clear majority had expressed itself following any referendum vote, implying that a supermajority is required for success.
- States that all provinces and the indigenous peoples were to be part of any negotiations.
- Permits the House of Commons to override a referendum decision if it felt the referendum violated any of the tenets of the Clarity Act.
- Clarifies that the secession of a province of Canada would require an amendment to the Constitution of Canada, which requires separate ratification.
The 2012 Edinburgh agreement, which allowed the first referendum to take place, laid out a temporary agreement between the UK government and the Scottish government on –
• The date of the referendum;
• The franchise;
• The wording of the question;
• Rules on campaign financing; and
• Other rules for the conduct of the referendum.
A clarity act would need to have a wider scope. Covering what conditions would precede or trigger a referendum and some clarity on what would happen afterwards.
The key decisions as I see them are:
- Determining If the question should be asked
- Scheduling When the question could be asked
- Defining How the process would work- the franchise, the question, the benchmark and
- Clarifying What would happen after a vote; one way or the other
Should the question be asked?
Should there even be a process to break up a state? What is the normal International position? How should we reasonably judge if independence should even be on the Agenda?
One nationalist claim is that Scotland must have some constant right to secede to be a voluntary union, or it is a democratic outrage, a crime against that populist justification ‘the people. At the extreme end a false dichotomy is put forth that unless a region of a unitary state can unilaterally break up that state it is by definition a colony.
What is the internationally accepted democratic process to break up a unitary state?
It is extremely misleading to claim, as Alba MPs Neale Hanvey and Kenny MacAskill have, that in the UK there is some particularly restrictive democratic outrage against the UN Charter principles of ‘self-determination’. As Stephen Daisley points out the vast majority of states in the United Nations have in-built protection against Balkanisation.
“There is nothing undemocratic — nothing whatsoever — about refusing separatists an opportunity to dismantle the state.”
Stephen Daisley https://stephendaisley.substack.com/p/no-first-minister
Daisley gives several examples from around the world:
Bavarians in Germany were refused a referendum on separation.
US states can only secede by getting the other states to support it or winning an armed insurrection.
Catalonia not being able to unilaterally break the Spanish constitution.
Again and again, we see: The international norm is for states to protect their territorial integrity from fragmentation.
Indeed – if anything, the UK is an outlier by allowing the 2014 referendum on Scottish separation to take place.
When should the question be asked?
The Generation Game
Much has been made of the phrase ‘Once in a Generation. On the nationalist side, there are backpedalling claims made ranging from ‘it was a throwaway line’ and ‘never meant seriously’ to being meant but a political generation only being seven years.
On the pro-UK side, it’s pointed out that – not only did both Nicola Sturgeon and Alex Salmond use the phrase repeatedly during the campaign – as seen here:
but it is literally in black and white on page one of the Whitepaper.
From interviews Salmond gave at the time, I took his understanding to be that the period between the 1979 devolution referendum and the 2014 referendum was what he felt was a reasonable interval.
Is a majority of MSPs sufficient Mandate?
I’ve written in detail here about 12 Logical, Legal and Democratically Legitimate arguments why we should not have a second referendum soon, without using the phrase ‘Once in a Generation.
As a rhetorical phrase, its inexactitude makes it a poor benchmark to use as the basis for or against a particular time frame.
In 2014 there was an SNP majority at Holyrood, but that was not the only deciding factor. The question, or a similar question, had not been asked recently, and there was cross-party consensus across Westminster that it was right to ask it, allowing a section 30 order to be passed. While Nicola Sturgeon claims she has a mandate based on the 2021 Scottish Election, it’s far from being clear-cut.It fails even at the basic pseudo-plebiscite level ( which she appeals to for her de facto referendum plan b).
Yes, suppose the Green votes are included. In that case, there are a majority of pro-referendum MSPs, however, on the constituency votes, more voters voted for pro-UK parties than Nationalist ones, and more voters didn’t even vote!
Less than a third is not a popular mandate: and it falls far short of Nicola Sturgeon’s own previous principle.
Nicola’s own benchmark
There is an established, quantitative benchmark that leaves less room for interpretation. Nicola Sturgeon indicated when she came to power that she felt the right time for a second referendum would not be until there was sustained support of over 60% in the polls for independence.
https://www.scotsman.com/regions/snp-60-support-needed-next-independence-referendum-1492381
Indeed their stated position was that until polls showed, for an entire year, that support for leaving was 60% or higher, they would not have ‘earned the right to ask the question again. Looking at averages of polls, they have never gotten anywhere near this, never mind maintained it for a year. There was a recognition here that a then cautious Sturgeon would only want to call a vote she could win and also reset the expectations of her agitating base. Perhaps she also wanted to win a supermajority for independence to add validation and increase international acceptance. Most likely, she was looking to reassure soft yes and soft no voters that an electoral vote for the SNP was not a vote for an immediately destabilising rerun.
Based then on the SNP’s stated principles: from Alex Salmond, as SNP leader indicating 35 years was a reasonable interval between constitutional questions, and from Nicola Sturgeon who said that above 60% in the polls for a year would show she had earned the right to ask again.
It’s reasonable to say that either of these conditions, combined with a majority in the Scottish Assembly, could be a reasonable referendum trigger.
How Should it be asked?
A referendum has a clarity that a pseudo-plebiscite election (such as Nicola’s ‘de facto’ referendum) cannot. This is summarised neatly by Sturgeon’s advisor and ousted councillor Mhairi Hunter.
The Franchise
This is related directly to the self-determination section on who the people are. Nationalists, naturally, see partition as only a vote on Scottish independence: but to many Scots and to many English, Irish and Welsh – all the British, this would be a vote on breaking up the UK. There are many stakeholders. There are many different franchises in the UK – from local elections, Scottish elections, European elections (as was) and General Elections. They each have different demographics that favour one outcome or the other.
What would be fair and democratic?
We could take it as a democratic principle that those who will be significantly affected by the results should have their voice heard. Rather than temporarily pass the power to Holyrood and allow one side to stack the deck, there’s an argument that a constitutional referendum on the UK should be run from the UK-wide parliament on a UK franchise. A UK adult 18+ vote of UK citizens.
The SNP may say this disenfranchises 16 and 17-year-olds and EU nationals in Scotland, who they want to include because they are more likely to be pro-independence. They will likely refuse to accept the validity of a result claiming that stakeholders were excluded and it’s a “democratic deficit”. They are likely to do this anyway under Nicola Sturgeon’s dubious “election as a de facto referendum,” although they have been inconsistent: when the SNP put forward a motion in the Scottish Parliament for a second independence referendum on 28th March 2017, the party omitted the right for 16 and 17 year-olds to be able to vote in it, although they later supported a Green amendment, so this may have been an oversight.
A counterargument can be made that it should now include the many Scots who live in the rest of the UK, and in the armed forces, that the SNP want to exclude because they are less likely to vote for independence.
- The UK general election franchise favours the union.
- The first Scottish referendum franchise favours partition.
Both have their proposers. What would be fair? There are two reasonable cases to be made: yes, 16-year-olds and non-citizens have a stake, but if Scots living in the rest of the UK would be entitled to citizenship of an independent Scotland (and it’s hard to see it being refused), then there is clearly a democratic deficit in excluding them. The SNP would be hypocrites to argue FOR a democratic deficit just because it favours them.
There are shades of hypocrisy in the SNP extending the franchise downwards. This is the same SNP that wanted to have a named person monitor Scots until they were 18. These are the same SNP who want to extend the age of criminal responsibility softly upwards, so criminals younger than 24 do not face jail on the basis that their brains are not mature enough to be fully responsible until then. Indeed, they have been criticised for lowering the voting age while not giving young people the tools to make informed decisions.
“The SNP Scottish Government has failed to provide young people with adequate citizenship education that would help inform and empower them to accompany the lowering of the voting age. This points to the SNP being primarily interested in harvesting the votes of 16 and 17-year-olds rather than educating young Scots about citizenship and democracy in school. Furthermore, the SNP Scottish Government has not reduced the ages young people access other citizenship rights, i.e. only the voting age has been lowered. On the contrary, certain age limits in Scotland have been raised, for example, to 18 regarding smoking, and most legislative changes in Scotland have been in an “upwards trajectory” .45 This inconsistency on young people’s legal status suggests lowering the voting age for Scottish residents was said to be in part due to “political motives”.
However, the proposed change in voting age was one of the key recommendations of the all-party Smith Commission on increasing devolution after the Scottish independence referendum.
Other Nationalist groups have even sought to restrict the franchise.
This voter restriction to manipulate the outcome is a standard Nationalist and populist tactic. Sometimes it is argued overtly – e.g., “New Scots should not get a vote, only people born here.” Sometimes covertly: e.g. excluding Scots who live elsewhere in the UK or – as we see in the US, restricting access to votes and postal votes that disproportionately impact certain demographics or requiring voter ID.
The SNP say they are in favour of democracy. The most democratic option would be to give as many stakeholders who would be affected a democratic say.
There should be negotiation on the franchise: another cross-party commission, as part of informed wider electoral reform. Some guiding principles might be: all those who would be eligible for citizenship in an independent Scotland – that would encompass both residents and Scots-born here but living elsewhere.
Another principle might be ‘voters of full responsibility’ – or votes weighted by responsibility. This is a controversial idea: however it is raised by an inconsistency in principles. If the SNP feel 17-year-olds cannot be trusted to buy cigarettes, buy alcohol, or be held fully responsible for their actions, and to require a named civil servant to monitor them, then in order for their vote to count equally, these rights and responsibilities should also be extended equally. If they are not willing to extend full rights and responsibilities to 16-year-olds – because they make the argument that youth impairs their judgement and decision-making, then their votes should also be scored accordingly. It would need negotiating, but fair compromises could be made – for example, give 16 & 17-year-olds the vote, but extend the franchise to include people born in Scotland but living elsewhere who would qualify for Scottish citizenship.
What Should the Question Be?
“Le pire des Deux Mondes” (the worst of both worlds)
When Quebec held a referendum on changing its constitutional arrangement with Canada in 1995, the question was
“Do you agree that Quebec should become sovereign, after having made a formal offer to Canada for a new economic and political partnership, within the scope of the bill respecting the future of Quebec and of the agreement signed on 12th June 1995?”
What it lacked in clarity it made up for in annoying everyone. Separatists claimed it should at least have included the word “country” to make it clear it was a vote on separation. Federalists claimed it implied that there was likely to be, or already agreed, a partnership agreement – which was not the case.
In the 2014 Scottish referendum question was “Should Scotland be an independent country?” with a Yes / No answer. This was approved at the time by the electoral commission and is the preferred choice of the Scottish Nationalists now.
The referendum question was: Should the United Kingdom remain a member of the European Union or leave the European Union? The responses were:
1) Remain a member of the European Union
2) Leave the European Union
This was a change from the original question that was proposed by parliament, which was ‘Should the UK remain a member of the European Union?’ The question was changed after the required assessment by the UK’s Electoral Commission.
The SNP, launching their pseudo referendum, has said it will repeat the question of 2014. Interestingly the Electoral Commission has said that the SNP have not asked them to test this question (not recently anyway, they have asked them since 2014). And that this would be a legal requirement. We might take from this that they are not expecting the Supreme court to rule in their favour.
Supermajority
Principle: significant change should require more than a simple majority.
Changes to constitutions commonly require supermajority support.
The first independence referendum was held on a 50% + 1 vote margin, as was the much narrower Brexit vote. This was justified on the basis that they were both only ‘advisory non-binding’, but in principle, they would both have been enacted.
- It’s normal practice internationally for constitutional change to require a ‘supermajority’.
- It is also not unprecedented in the UK. Prior to its repeal, the fixed term parliament act of 2011 required a ⅔ supermajority in the commons to call an early election.
- The United Nations requires a three-fifths supermajority of the fixed membership on substantive matters.
- The Federal government of the United States also requires supermajorities for certain significant actions. Amendments to the constitution can be proposed by a ⅔ supermajority in each house if Congress OR a convention called by Congress if ⅔ of states apply. Treaties must be ratified by a ⅔ majority of the senate to enter into force and effect.
- We know that the SNP support supermajorities in principle for constitutional change because they require a 2/3 majority of their members to support a change in their party constitution. The supermajority level of support was also indicated in Nicola Sturgeon’s belief that she should not call for a second referendum until she had achieved and maintained 60% support.
What are the arguments for and against Super Majorities?
Perhaps the best argument for a supermajority is Brexit. The topic was divisive, and the winning margin was narrow. The Leave side won narrowly but can hardly be said to have brought the country along with them. Alex Salmond’s Alba party is calling for *less* than a majority! He responded to Nicola Sturgeon’s plan B by saying that aiming for 50% of the vote was too high a bar and that in an election, she should declare independence if gaining a majority of Scottish MPs.
This was also the confused position of John Swinney Immediately after Nicola Sturgeon’s announcement; though this was later retracted. He claimed he misunderstood the difference between a majority of MPs and a majority of the vote.
The apocryphal justification for this supposedly comes from a remark made by Margaret Thatcher that all Scotland needed to do was return a majority of Nationalist MPs. However, while this quote has been widely repeated, I have not been able to trace it to an original or confirmed source.
A Confirmatory Vote
What has become quickly apparent with Brexit is that what is, has or will be delivered bears little resemblance to the information people used to base their decision on when voting.
It’s been suggested that referendums should not be used to make decisions: only to confirm them.
The SNP argued for a confirmatory vote on Brexit once the terms of the deal were known. However, the first minister says Scotland would not get a confirmatory vote to approve any deal to leave the UK, claiming that votes on Scottish independence are ‘informed’ by their Whitepaper in a way the Brexit vote wasn’t.
However, as I have outlined here: there were contradictions and omissions in the Whitepaper. For just some examples: the Whitepaper promised both a currency Union and ‘full control of economic levers’ even though those are mutually exclusive. The Whitepaper promised continued, unbroken, EU membership – though by the time of the vote, the European Commission had ruled this out. The only tax policy outlined in the Whitepaper was a cut in corporation tax. Given that spending projections were also based on oil revenues at $118 a barrel: even if we took the Whitepaper promises to have been made in good faith, if we had voted yes on 18th September 2014, it would have been clear by Independence day we would be facing massive tax rises and spending cuts.
On that basis, and given the brexit experience, it would be prudent to include a confirmation vote. If Nicola Sturgeon truly believes that Scots would vote for independence and have no regrets, then there is no downside to her agreeing to this.
Legislation can enshrine that right to the people of Scotland, should independence be voted for.
Campaign Financing
A clarity act could refer to extant legislation on Campaign financing. Lessons can be learned here from the first referendum: Political parties were subject to spending limits during the referendum. The SNP fully spent their limit of £1.3 million; however, they also “donated” £1.2 million to Yes Scotland – meaning they effectively spent double. In comparison, the unionist campaign group ‘better together’ did not accept funding from political parties.
Compare and contrast with Spending limits during the Québécois referendum. All campaign spending had to be authorised and accounted for under “Yes” (Le Comité national du OUI) or “No” (Comité des Québécoises et des Québécois pour le NON) umbrella committees. Each committee had an authorised budget of $5 million. Campaign spending by any person or group other than the official committees would be illegal after the official beginning of the referendum campaign.
A clarity act could make it clear any result would be null and void if there were significant breaches in campaign spending.
Regional Veto
The SNP have been very clear as a matter of principle “A region should not be taken out of a union against their democratic will” – indeed, it is the basis for their call for another independence referendum.
In 2015 Nicola Sturgeon said it would be “democratically indefensible” for regions to be taken out of an economic/political union against their will.
The SNP demanded a regional veto on the Brexit vote: saying that if we were in a ‘Union of Equals’, then if any of the regions of Scotland, Ulster, Wales or England voted to remain, that should keep the whole of the UK in.
It’s interesting to note that they set a clear precedent here that caution should favour the status quo. Otherwise, it would be equally legitimate to say no region should be kept in against its will, so any single region voting leave should take all regions out. The counterargument is that the UK was the EU member state, the region having no EU status and not being signatories to any EU treaties. So it was one person, one vote UK-wide, and that would make each person’s vote count equally no matter where they voted. Due to the disparate population ratios, the regional veto would have made each Scottish vote ten times more powerful than each English vote.
Using the SNPs Logic, it would be a democratic outrage if a region of Scotland were to be dragged out of the UK against its will. As in the referendum, votes are likely to be administered and counted by the council area. Perhaps it can be negotiated whether a single council area would keep the whole of Scotland in the UK or if it would merely opt that council out of being partitioned. For the strongly unionist Border Councils, this would simply be a case of drawing the international border further north upon partition. There is historical precedent for this; Northumberland stretched up north of Edinburgh at the time England was formed.
for any Quite simple too, for any island regions wishing not to be ripped out of the union into a Scottish state, Shetland, for example, was part of Norway. Even for ‘landlocked’ areas, there are precedents. There are areas of Ireland where the border was drawn along a river. Rivers move over time, but the border didn’t move with it: leaving some southern Irish enclaves whose only land access is through Northern Ireland. In living memory, West Berlin was completely surrounded by East Germany. Still today, there are many parts of the Netherlands completely surrounded by Belgium- and vice versa!
So it’s complicated, it would cause administrative and potentially costly complications compared to now, but it’s not so unprecedented that the right of self-determination couldn’t be extended to regions of Scotland.
Conclusion
The Supreme Court and election gambit from the SNP will not lead to independence, and they know it. It is an exit strategy for Nicola Sturgeon. Following a general election supposedly fought on that single issue, she will claim a moral victory regardless of the result. Very likely claiming that because 16 and 17-year-olds and foreign citizens were denied a vote, it’s another democratic outrage. The best result for them will be between 45% to 49% – she is planning to fail. That will leave her able to say she has delivered the second vote she promised, she will not be under an obligation actually to deliver independence, and she can leave office having, probably, restored SNP MPs to around their 2015 high, securing significant party funding – and giving nationalist MPs 5 years highly paid salaries and expenses, with no manifesto commitments to deliver.
A ‘UK Clarity Act’ would be in all of Scotland’s interests. It should
- Set agreed conditions under which a plebiscite could take place:
i) When there is sustained support of 60% in the polls for over a year and
ii) a Majority of MSPs support it and
iii) An agreed stability period (generation) has passed since the question was previously asked.
- Set out the agreed process –
i) The franchise
ii) Principle of supermajority
iii) Robustness of question
iv) Ratification by confirmatory plebiscite vote
v) Ratification by both parliaments
vi) Void if terms are broken – e.g. on campaign financing, question etc.
- Set out the agreed consequences –
These need not be tying hands in every detail of negotiation but could outline red lines to put them beyond dispute.
i) There would be no formal currency Union
ii) Loss of lender of last resort
iii) Full transfer of state pension liability
iv) Fixed Negotiation period
v) Cessation of Barnett consequential funding
vi) Division of debts and assets
When is the time for this moment of clarity?
It would rather than unilaterally imposed, it would be better if this clarity act was negotiated between the governments, perhaps as part of more comprehensive electoral and constitutional reform including proportional representation. While such a framework might seem daunting to reconcile, those negotiations would be less fraught than any post-partition ones.
There is not going to be a referendum in 2023 that could lead to independence. There is not going to be a de facto referendum general election.
The best timing may be in the post-Sturgeon, Post-Truss period after the next general election. The constitution has been weaponised by both the nationalists and the conservatives – to the detriment of both yes and no persuasions. It’s time to take a step back – this would allow us to try and reverse the Ulsterisation of Scottish politics and focus on – pandemic recovery, healthcare, the cost of living, transport, education – all the topics that are pushed to one side by the constitution and are suffering because of it.
The Populist's Playbook 
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