It’s hard to believe that four years ago, David Cameron and Alex Salmond were having their opening spats over the mechanics of the independence referendum. What resulted in October of that year was the Edinburgh Agreement under which the UK Parliament at Westminster would give the Scottish Parliament at Holyrood the temporary power to call a legally binding referendum on independence so long as it was held by the end of 2014 and asked only one up-or-down question on the matter. In exchange, the Scottish Government would decide on the wording of the question, the date of the referendum (and effectively, the length of the campaign), and the voting franchise.
The aim was to provide a “clear legal basis” for the referendum being legislated for by Holyrood (since constitutional matters are reserved at Westminster) and to “deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect.”
A “decisive expression”, said the agreement. However, what did that mean, exactly? Was there more to this phrase than met the eye? At first glance, it would seem obvious that in a binary referendum – unlike an election where there may be more than two candidates – the side which secures more votes than the other has a majority of votes and that therefore, this means the electorate has made a “decisive expression” of its will. Indeed, Webster defines “decisive” as “having the power or quality of deciding”, and going by this, a decisive result in the referendum meant that one side gained a simple majority of 50% plus one.
However, the Webster definition also includes: “causing something to end in a particular way” and “very clear and obvious”. As I read the text of the agreement from my university dormitory (while taking a break from econometrics homework), I could not help but feel that a simple majority could not possibly be enough to be considered a “decisive expression” to change the constitutional status of Scotland and determine the existence of the United Kingdom. Yes, it would be a clear and obvious result, but not “very clear and obvious” and far from “causing something to end in a particular way” with a result that everyone would respect.
On the other side, the same was true for a vote to retain the Union; a simple majority would not be enough to put the issue to bed for a generation, for the SNP and their allies would almost surely continue to pursue their all-important objective in the belief that they would need only “one more heave” to cross over the hump. However, what made a separation “Yes” vote different from a pro-Union “No” vote was that the Yes vote was the vote for constitutional change (and the uncertainties this entailed with a Scotland separated from the rest of the UK) while a No vote retained the UK (and what was known – for good and ill).
Because such constitutional change should not occur without the overwhelming support of the people (and/or their elected representatives), I believed back then as I believe now that a vote for separation should have required a supermajority – of at least 60% – in order to be valid, and that David Cameron should have pressed for this.
This was not out of fear of a pro-independence majority so much as it was a concern for constitutional legitimacy and stability.
At the time, the polls were indicating that the separatists had a mountain to climb and were heading to a huge defeat by a 2-to-1 margin, which naturally would have put the issue to bed by a decisive margin. But I belived there was a possibility (based on the SNP’s electoral comeback in 2011) that the secessionists could turn things around and deliver independence with perhaps a slim majority, which would have been unacceptable as such a monumental change would not have had a consensus – or overwhelming – backing of the Scottish people, meaning that the case for that monumental change was not overwhelming in and of itself.
As it was, the separatists did catch up and two weeks before Referendum Day, one poll showed that they were ahead on a simple majority of 51%-49% (with “Don’t Knows” stripped out). On the actual day itself when votes were actually cast and when it really mattered, the people backed the Union 55.3%-44.7% – a nearly 11 point margin on an 85% voter turnout.
But imagine if this had not happened. What if the razor-thin result from Inverclyde on September 18th had been replicated in the overall vote total, but in favor of separation?
Under the rules of the referendum as they were, had the result been in favor of separation by a few hundred or thousand votes (or less) Alex Salmond would have had a legal mandate to proceed with negotiations for Scotland’s exit from the Union to become an independent country. In this, there is no doubt, for in a binary referendum where one side would be all but guaranteed a majority of some sort (and only a simple majority required), he would have had a “decisive” result to move forward with his agenda. But he would have done so with half of the country having rejected his offer and facing such a situation in which there was not broad support throughout Scotland for separation.
This is not to say that those who supported the Union would (or should) have agitated for another referendum to reverse the close result, but the fact that it was so close showed that the SNP’s proposition to change the constitutional status of Scotland and effectively terminate the United Kingdom was only supported by a bare majority of voters who could quite easily have gone the other direction at the last minute and flipped the result. That’s hardly a ringing endorsement for proceeding with the tortuous break-up of the UK.
On the other end, the actual 55% support for the Union would have fallen short of a supermajority as defined here, but it was still 383,000 votes clear of those who voted for independence and therefore represented a more decisive result than the hypothetical wafer-thin separation vote. However, even without this 11-point margin of victory, the Union would have been maintained by default since there was neither support for independence nor sufficient support for it to go ahead.
Going forward, there need to be an official and standardized rules regarding referendums and their use in the United, including a recognition that secession or any constitutional change requires more than a simple majority in a referendum to become effective. A simple majority may appear to be the democratic way to decide on such matters, but it fails to take into account a number of factors, such as the wide swath of people who did not vote for secession, consideration of the rest of the country, and the fact that such constitutional change does have the capacity to massively (and with some cost) alter the everyday decisions and concerns of ordinary people, and therefore needs a large mandate.
In the United States, our Constitution of 1787 was designed to be amended in accordance to the changing needs of the new country and to correct imperfections in the document itself. Indeed, within five years of its creation, the Constitution had its first ten amendments (collectively known as the Bill of Rights) in response to objections and concerns during the ratification process that the document did not contain strong enough provisions regarding personal liberty and limiting government power.
However, each of those amendments and the subsequent amendments over the next two centuries had to go through an uphill climb to become part of the Constitution, which provides for a two part process under Article V.
An amendment can either be proposed by two-thirds of both houses of Congress or by a constitutional convention requested by two-thirds of the state legislatures; to come into force as part of the Constitution, the proposed amendment must then be ratified by – as chosen by Congress – either three-fourths of the state legislatures or by three-fourths of state ratifying conventions.
In The Federalist (Papers), No. 43, James Madison – “Father of the Constitution and 4th President of the United States – provided an explanation for the amendment process by writing:
“It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.”
In other words, the Framers wanted a governing document that allowed for change when necessary, but not to the point where it changed at the whims and passions of a simple majority, because this would render the Constitution all but ineffective and meaningless, and – far from solving them – possibly exacerbate constitutional issues. Therefore, a high bar ensured that if the Constitution was changed, it would only ever be changed via the consent of the vast majority of people through their elected representatives at the federal and state levels, and not a fleeting simple majority (perhaps based on emotional spasms). Even the Constitution itself required the ratification of nine out of the thirteen states in the Union at the time to become effective.
Further on with regard to secession of the states within the Union, the Constitution is silent on the matter, but in 1869 following the Civil War, the US Supreme Court ruled in Texas v. White that upon becoming part of the United States, a state entered into an “indissoluble relation” and that there is “no place for reconsideration and revocation, except through revolution or through consent of the States.”
So the states do not possess a unilateral right to secede from the Union as the some of the southern states did in 1860-1861 to form the Confederate States of America. The only way a state can achieve this is through armed conflict or if allowed to do so with the blessing of the other states. This was based on the fact that the other states through Congress admitted the seceding state into the Union in the first place; if they allowed it into the Union, then they must also be called upon via their elected representatives in Washington to decide if it shall leave as well, especially if the proposed secession has the potential to adversely impact them.
North of the border, our friends in Canada have been dealing with Quebec secessionists for the better part of the last half-century. The first referendum on whether Quebec should pursue independence was defeated by a two-to-one margin in 1980; the second one in 1995 was much closer, with Quebecers voting to stay part of Canada by a margin of just 1.16%. Following the second vote, the question of Quebec’s right to secede was put to the Supreme Court of Canada, which ruled in 1998 that the province did not have a unilateral right to secede from Canada.
In order for the secession of Quebec or any other province to take place in a constitutionally legitimate and democratic fashion, there must be a “clear expression of the desire to pursue secession.” The Court did not explicitly explain what “clear expression” meant, but as Brian Lee Crowley – managing director of the Macdonald-Laurier Institute in Ottawa – wrote in CapX, “it doesn’t require a Jesuitical mind to find that the legal requirement must…be something more than just 50 per cent plus one of those voting.” Even then, all a referendum could do is trigger a “reciprocal obligation” of all parties to “negotiate constitutional changes to respond to that desire” and the negotiations themselves may or may not lead to the desired secession. So long negotiations are held in good faith, neither the federal government nor the other provincial governments would be under obligation to allow the secession of a province within Canada – something which at the end of the day would require the passage of a constitutional amendment – and the government of said province could always decide to withdraw its case for secession.
The court reached this ruling based on the notion that unilateral secession of a province “would purport to alter the governance of Canadian territory in a manner which undoubtedly is inconsistent with our current constitutional arrangements.” In this, they defined four central principals of the Canadian Constitution:
- Federalism – The ability the federal government to act on issues of common interest of all Canadians while giving respect to the provincial governments, which have their own authority independent of each other and the federal government, as well as to create a sense of binding national unity.
- Democracy – The principle of the right of self-government and democratic participation.
- Constitutionalism and the Rule of Law – The idea that the government acts under the authority of the constitution, not above it, and that the passions of the majority should not prevent those in a minority from having a fair say.
- Protection of minorities – This is found in all the aforementioned principles, but the Court gave it special attention due to the uniqueness of Canada with regard to its Aboriginal population and explicit constitutional protections dating back to treaty obligations upon the European settlers of what would become Canada, as well as the protection of others based on religion, language, and other backgrounds.
“These defining principles”, said the justices of the Supreme Court, “function in symbiosis. No single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of any other.” With regard to democracy in particular, they noted that it “would be a grave mistake to equate legitimacy with the ‘sovereign will’ or majority rule alone, to the exclusion of other constitutional values.”
Such constitutional values in Canada and other Western democracies are the reason why, for example according to Brian Lee Crowley, a candidate for public office and indeed, an entire political party, can win elections with much less than 50% of the vote. Recent examples include the 2015 Canadian federal election in which Justin Trudeau’s Liberal Party won an outright majority of seats in Parliament with just under 40% of the popular vote, as well as the David Cameron’s Conservatives at last year’s UK general election who also achieved an outright majority on an even lower share of the popular vote at nearly 37%.
Such outcomes – flawed as they may be – are nevertheless accepted because they are “dependent on other fundamental rules of fairness”, such as government actions being subject to protection for minority rights, independent courts holding the government to account for its actions, and the right of eligible citizens to vote (with universal adult suffrage at 18 years of age for most Western democracies). In short, the rules of the game allow for a party to be legitimately elected when it has the largest number of votes and/or the largest number of seats in the legislature – even if there were more votes against it than for it – so long there are constitutional safeguards against that government and its actions. (However, I would personally add that in such circumstances, there's a case for at least some prortional element to the system.)
So sacred are these rules of the game which underpin constitutional fairness and governmental legitimacy, that Crowley points out that “most countries don’t permit mere governments or even electoral majorities to change them on their own”, and instead require “some kind of ‘super-majority’ or parliamentary and popular approval.” This is how the American and Canadian systems work with regard to constitutional change – placing high barriers which force the side advocating change to make an overwhelming case and requiring the consent of the affected parties.
Nowhere is this truer than with regard to the constitutional status and make up of a country and its political subdivisions, because such arrangements affect everyday decisions on property ownership, taxes, labor rights, the economy, personal finances, general welfare, and a host of other issues. This does not concern only the people in area that desires to secede, but also those in the rest of the country, which is why the Canadian and US supreme courts have rejected unilateral secession with regard to the their political subdivisions, and in Canada’s case specifically, have declared that a desire to secede merely obliges the rest of the country to enter into negotiations. After all, as Crowley notes:
“if the secessionist region has a right to pursue its national interest, it does not trump the right of the country being rejected from doing the same on a wide range of issues, including sharing of the national debt and assets, management of natural resources, use of passports and currency, dual citizenship and more.”
Anyone with memories of the Scottish referendum in 2014 remembers how the SNP produced the infamous White Paper – billed by the party and other activists as the prospectus of Scotland’s future as an independent country (but which one former insider recently described as “deluded”). That document contained dozens of promises to the people of Scotland on many of the aforementioned issues – promises the SNP was in no position to make because it simply could not demand for them to come to fruition, such as the proposed currency union between an independent Scotland and the rest of the UK. Despite warnings that there would be no formal currency union, the SNP and their allies attempted to make the case that by voting for separation, the people were also endorsing the White Paper and all its provisions (including the currency union) and that this would have obliged the rest of the UK to go along with these provisions if Scotland voted for separation.
In Canada, secession of a province can only become a reality when there is a “high degree of national agreement”, which means that the rest of the country have some bargaining power in shaping the new constitutional arrangements which may well be different – adversely different – from the pie-in-the-sky promises of the secessionist party and/or activists. Perhaps one reason why the SNP lost the Scottish referendum in 2014 was because the people believed (correctly) that there would be negotiations on Scotland’s exit from the Union and that the final outcome of those negotiations may well have been less than what the SNP was offering – therefore potentially leaving Scotland and themselves worse off.
As noted by Crowley, the overall point here is that because of the known rules of the national status quo (which everyone, including the secessionists, live by):
“there is a strong presumption in favour of its protection. That presumption can be overcome, but the case for it to be overturned by a simple majority of those who happened to turn out in a referendum is very weak indeed.”
Very weak because of the lack of constitutional safeguards to ensure that the proposed secession holds up to the rule of law, protects minorities, ensures that the rest of country has its say, and is supported by a large majority of the electorate in the seceding area (which depends on a convincing case for secession).
With regard to the US Constitution, such safeguards amount to a system of checks and balances in which, as James Madison said in The Federalist No. 51, “ambition must be made to counteract ambition”, and the interlocking parts of the Constitution work – among other things – to prevent factions from changing it at will without the vast majority of the population supporting it, as well as to encourage broader consensus on issues facing the country (or any part of it) in general and guard against the destructive “factions” as described in Federalist No. 10.
This is the reason why the Constitution has only ever been amended 27 times because the amendment process – with its supermajority requirements among Members of Congress and the state legislatures – prevents frivolous and unnecessary change by what may be the short-term passions and emotions of a fleeting majority. Some proposed amendments have had majority support, albeit not enough to cross through the hurdles of at least one stage of the process. The result is that it forces people to think hard about if they really want the change and ensures that the country broadly supports it.
In contrast, the United Kingdom is a country that has been underpinned by majority rule via the sovereignty of Parliament (elected – in the Commons – by the people) and features an unwritten and uncodified constitution which has been lauded as flexible yet durable for hundreds of years. However, there may be need to have another look at that in light of the referendum which could have easily broken it up and in the face of the upcoming referendum on European Union membership, because relying on convention and various documents over the centuries may not be enough in the face of the heated passions and forces currently at work in the land.
At the very least, there need to be codified rules which “governs and conditions the use of constitutional referendums” and allow constitutional changes – including secession – “on the basis of an established measure of consensus”, as suggested by the Bingham Centre for the Rule of Law’s report following the general election last year: A Constitutional Crossroads.
With regard to referendums, the report noted that their use in the United Kingdom has been ad hoc, with no constitutional rule on when a referendum can be held or on what issues (with Northern Ireland being an exception because of the peace process which resulted in its devolution settlement including a provision for a referendum to be called by the Secretary of State for Northern Ireland on whether it remains part of the UK). It cited a House of Lords Constitution Committee inquiry into the use of referendums in the UK, which found that they had “significant drawbacks” in part due to their use more so for tactical reasons rather than principle. Therefore, cross-party consensus ought to be sought on what circumstances are appropriate for referendums, and the committee went on to say that their use should be restricted to “fundamental constitutional issues”, which it broadly defined as:
“any proposal to abolish the monarchy, to leave the European Union, for any of the nations of the UK to secede from the Union, to abolish either House of Parliament, to change the electoral system for the House of Commons, to adopt a written constitution, or to change the UK’s system of currency.”
Further, the Bingham report noted that critical components such as the franchise, timing, and voting thresholds (if any) have been set for each referendum that has taken place, as opposed to be common rule being applied. With regard to franchise, the decision to exclude the 800,000 Scots living elsewhere in the UK and overseas from the independence referendum was met with controversy, just as was the decision not to allow non-British EU citizens to vote in the upcoming EU referendum. Similarly, while 16 and 17 year olds were given a temporary right to vote in the independence referendum, no such provision is forthcoming for the EU referendum.
On the issue of voting thresholds, the report made note of how the infamous “40% rule” was used for the 1979 Scottish devolution referendum, but no similar threshold (either that or a supermajority) existed for the 1975 EEC referendum, the devolution referendums in 1997, the 2011 AV referendum, and the independence referendum in 2014. The Lords Constitution Committee took the view that “there should be a general presumption against the use of voter turnout thresholds and super-majorities”, but added that there may be “exceptional circumstances in which they may be deemed appropriate.”
When discussing the frequency of referendums on the same issue, the Bingham report quoted Alex Salmond and Nicola Sturgeon as saying that the 2014 referendum was a “once in a generation” event. Of course, both have back-pedaled from those statements as they and the SNP have, as said by Colin Kidd in the Guardian, “worked hard to soften up the media and general public, setting out circumstances that would compel another independence poll”, including the prospect of the UK as a whole voting to terminate its EU membership while a majority of Scots voted for the UK to retain its membership. On top of that, there is no constitutional rule preventing the SNP from going back on its “once in a generation” rhetoric and calling on another referendum within the next five years should it win another majority at Holyrood this year based in part on a referendum commitment of some sort in its campaign manifesto. Yes, Westminster can refuse, but it’s realistically difficult seeing that happening in the face of a mandate and the precedent that was set following the 2011 election, and this shows the pitfall of an unwritten constitution which relies so much on convention and precedent, and can be used to the advantage of the separatists.
However, the Bingham report did state that “referendums are not opinion polls, but legally authorized means of deciding constitutional questions”, and that as such, they should not become “neverendums” with the same (or similar) question being repeatedly asked of the electorate until the “correct” answer is delivered for one side or the other.
This therefore raises the following question: what’s the good of holding a constitutional referendum if it fails to settle a certain issue for a prolonged period of time? Furthermore, what good is a referendum on anything if another one appears to be around the corner within 5-10 years because one side refuses to accept the result they did not want? The result is a neverendum until the aggrieved side either gives accepts the result (for an indefinite period of time, if not forever), or gets what it wants. This does not do anyone favors – economically, politically, or socially – when such uncertainty and instability is in the air. Just ask Quebec.
Therefore, as part of an overall plan to codify and standardize Britain’s laws and constitutional rules pertaining to referendums, there ought to be a period of time following a referendum vote when another vote on the same issue cannot be held. Already, as the report states, a repeat referendum on Northern Ireland’s constitutional status cannot be held within seven years of the preceding one. For the UK as a whole (including if possible, a revision for Northern Ireland), a period between referendums should last no longer than 15 years – which is how the Bingham report defines a “generation.” Such a period would place clear blue water between the two polls and allow the second one to be fought largely independent of the first – especially in the hope that the passions and emotions of the first will have subsided by then. This can also help to focus on more pressing day-to-day matters, such as policing, education, health, welfare, transportation, and the overall economy (which is helped by the reduction of uncertainty deriving from a neverendum).
When legal referendums are held, a supermajority should be required in order for the result to be binding. As has been noted, a supermajority is ill-defined, but at the very least, it does mean more than 50% plus one in terms of a vote share. However, in order for a supermajority vote to have any meaning with the aim of forcing the “change option” to get an overwhelming and clear mandate from the people, it will have to be well above 50%. Perhaps the definition of a required supermajority can start at 60% of the vote, but no higher than 75%. Any share of the vote within that window ought to be sufficient for the expression of an electorate’s clear, decisive, and unambiguous intent to constitutionally change something about their country, and to call all parties to the negotiation table in good faith.
As was said above, the Lords Constitution Committee took a general view against the use of supermajorities and other thresholds outside of achieving a simple majority, but added that there were “exceptional circumstances” where a supermajority requirement would be “appropriate.” It did not elaborate on what that meant, but given what is at stake with regard to the constitutional status and makeup of the UK and its constituent parts, it is probably safe to say that another Scottish referendum and the upcoming EU referendum classify as very appropriate for being subject to a supermajority requirement. These are issues that are too sensitive, too critical, and too important for the future of the United Kingdom and its people; their outcomes will have impacts on the economy, jobs, finances (public and private), society, politics, and determine the very survival of the United Kingdom as a country and an influential world power.
That should not be determined on the back of a flimsy majority and with potentially half of the country voting another way on such a paramount issue which will have repercussions and unintended consequences for years – possibly decades – to come.
A supermajority requirement of 60% or more ensures that constitutional change proposal are carried through with the vast majority of the voting population desiring to make that change. To put it more explicitly, this would affirm that a substantial majority of the UK wishes to terminate membership of the EU and similarly, determine that the vast majority of Scots desire to become independent and break up the UK. With this higher bar, a simple majority would not be allowed to change everything unless at least an additional 9.9% of the voting population was behind them, because it is untenable for constitutional change to occur unless the proposition receives an overwhelming mandate, and this is most important. (For historical perspective, the original Scottish Parliament in 1707 voted 106 to 69 in favor of the Union with England – a 60.5% to 39.5% majority.)
If there are enough votes for a majority, but not for a binding supermajority, then the initiative will fail, and the status quo will remain in place. It’s akin to most criminal trials in the United States, where the a jury must be unanimous in convicting a person charged with a crime and the onus is on the prosecutor to make a convincing case for conviction. If but only one juror has doubts about convicting a defendant, this results in a hung jury and possibly a mistrial, which can mean that he or she will not have been cleared of the charges, but nor will the person be declared guilty and sentenced. For all intents and purposes, the charged individual remains innocent by default, unless the state decides to bring a new trial on the same charge (which is not usually subject to the “double jeopardy” rule because the first trial was inconclusive and therefore incomplete).
Similarly, if a referendum initiative on Scottish independence or EU membership fails to attract enough votes to hit or exceed the required threshold, then Scotland remains part of the UK and the UK retains its membership with the EU. Like the a prosecutor who failed to make a convincing enough case to get all 12 jurors to convict a defendant, the proponents of secession or any other major constitutional change will have failed in their effort to convince around two-thirds of the population to vote in their favor - again, with the onus being squarely on them to make an overwhelming case. Also like the mistrial that can result in a new trial, the matter can be brought up again, albeit not until at least 15 years have elapsed.
There will undoubtedly be some people who will not like this suggestion of requiring a supermajority for constitutional issues, or of a time period during which a referendum on a specific issue cannot be held. In particular, some Nats have accused those who support the Union and wish not to see another referendum soon after the last one of being anti-democratic and against self-determination – saying that if Scots want another referendum, they should get one. That is democratic after all, isn’t it?
Yet, as this article has repeatedly noted, there’s more to democracy than majority rule, for democracies are dependent on a firm grounding in the rule of law and ensuring that majorities don’t easily overpower or outmaneuver minorities. Otherwise, democracy descends into anarchy and laws are too easily based on the political winds and emotions at a particular moment in time. If there is an overriding thirst for change, or if the moot has shifted from one position to another in the course of time, it must be solid and sustained. 50% plus one does not offer that, but a supermajority requirement does (so it’s actually “super-democratic”).
Other people of various political persuasions may also object to what they see as the Americanization or federalization of the British constitution, and the reaction of some friends and acquaintances to my suggestions for the House of Lords is a testimate to that.
However, this is not about trying to make Britain into America’s image; after all, this article is partly based on the Canadian constitutional experience, and both traditions have their roots in what was developed in and exported from the UK. It won’t hurt for the UK to learn a thing or two from its former colonies on the merits and value of adopting constitutional structures which upkeep democratic traditions but with rules which allow constitutional change within the rule of law, as well as with due consideration and when the vast majority of the population and/or Parliament expresses favor for it. When the country decides on such issues, it must do so overwhelmingly and not take the decision lightly with a simple majority; the result must be truly “decisive.”
This can help to strengthen the UK constitution and perhaps lead to a day when it becomes a written document that encapsulates the traditions and conventions worth keeping, while creating and establishing new ones. At the very least, this can bring clarity and formalization to the rules and conditions regarding referendums and constitutional change – especially with regard to issues such as secession – and how they ought to be handled, so that they can be handled in a consistent manner. This has the added bonus of preventing politicians from setting each referendum on their own (varying) terms, because the rules will have largely been made beforehand.
If done the right way, fixed referendum rules with a time period between referendums, an established franchise, other measures regarding issues such as campaign lengths and financing, and above all, a supermajority requirement can bring much-needed fairness, stability, and durability to Britain’s constitutional arrangements in the current politically volatile atmosphere and provide a stronger foundation for the country’s future going forward.