Still Together and the Path Forward

The "Aerial No" in Edinburgh just days before the referendum.

The "Aerial No" in Edinburgh just days before the referendum.

     Today would have been the day that Scotland became an independent country and when the United Kingdom would have been broken up.

     Thankfully, it is not. The people of Scotland saw through the dubious, dodgy, and threadbare claims of the separatist case pushed by the Yes campaign, led by Alex Salmond and the SNP. The people debated and argued throughout a two year long campaign in which all of the issues were discussed at length. During this campaign, there was almost constant media coverage of the campaign and the issues at stake; there were claims and counter-claims – in print, on television and radio, on various online platforms. Indeed, with all the back-and-forth going on between the positions and people on both sides, it’s a wonder that many of us didn’t lose our heads!

     It was an emotionally training and exhaustive campaign – the likes of which many of us had not ever witnessed – and the world watched to wonder if the United Kingdom was on the verge of dissolution. Indeed, as the campaign went into its final month, the Yes campaign caught up and it looked as though they might have had a shot at their prize.

     In the end, after all the speeches, rallies, leaflets, ads, marches, bean counting, pronouncements, and flag-waving, on September 18, 2014, the people voted decisively to maintain the United Kingdom and to preserve over 300 years of history, heritage, and relationships – economic, social, cultural, and political. The people said quite politely and in a fair and legal democratic referendum: “No, Thanks”.

     We should all be thankful for the result, for it spared Scotland and the rest of the United Kingdom from unnecessary and untold upheaval on many fronts. A bullet was dodged and one of the greatest countries in the world was saved.

     However, there’s no denying that the SNP – far from being mortally wounded – has gone on to dizzying heights as a political party. Successfully capturing the 45% of Scots who voted Yes and trading on the popularity of their new leader Nicola Sturgeon, they won all but three of the 59 UK parliamentary seats in Scotland at the General Election in May 2015 – becoming the third biggest group in the House of Commons and in terms of its membership, the third biggest political party in the United Kingdom.

     Now, there appears to be little sign of them slackening in the opinion polls, and they are projected to win an unprecedented third term in government with another majority – thereby likely keeping the separation and constitutional issues at the forefront of politics in Scotland. Scores of voters who tended to vote for the three pro-Union parties have bolted to the SNP, and there are no indications that they are coming back soon.

     In the face of this, the SNP’s opposition is divided between those parties – Labour, the Conservatives, and the Liberal Democrats – with Labour and the LibDems at historic lows and the Tories seeing something of a small revival since their 1997 wipeout, but nothing in the way of providing the numbers and political muscle to provide a strong opposition by any single party.

     In the circumstances – especially with most polls still showing a majority or dead-heat on the independence question – some people such as columnist Alex Massie have come to the conclusion that Scotland has too many parties, and that if the vast majority of Yes voters are fueling the SNP’s rise to around 50% in the polls, then it stands that No voters need to have a party of their own – a single “Unionist Party.” They believe that the pro-Union/anti-Union split and a focus on constitutional arraignments are the new norm and that, in Massie’s words, “the great political realignment spawned by the referendum is not over yet”, and in this vein they believe that a Unionist Party must be formed out of a merger of the three main parties and the UK Independence Party (UKIP) in order to give a proper voice to those who voted No, mount an effective opposition to the SNP, and “offer a plausible alternative to the SNP’s constitutional vision.” Given that the SNP is effectively (in practice, if not in rhetoric) a centrist party, a Scottish Unionist Party would run largely parallel to them and differ only on the national question. As Massie put it, the SNP and SUP would be “rather like Caledonian versions of Fianna Fail and Fine Gael [in the Republic of Ireland], parties sharing the same part of the political bandwidth, but ferociously opposed to one another.”

     In many ways, I must say that this is an enticing prospect. There is sound logic behind, and in theory, would very much help at providing an effective answer to the SNP. The problem is that theory is just that – theory – and there are three main problems with the creation of a Scottish Unionist Party.

     Firstly, how would it work in terms of political ideology outside of advocating for the Union? It may be easy to say that it would be a centrist party to appeal to most people, but realistically, how would it accommodate those members, activists, and voters from Labour, the Tories, the LibDem's, and UKIP? If you can't get the vast majority of those who voted No to back a Unionist Party because of differences over non-constitutional policies, then where will they go when their parties have been merged into it?

     Secondly, how would it work in relation to the House of Commons? Would the party vote with a whip unto itself or would left-wing MP’s be able to vote with Labour and right-wing MP’s with the Tories?

     Thirdly is the concern that a party whose raison d'être is “Unionism” will only entrench the referendum dividing lines and make for – and I say this with no disrespect – a Northern Ireland-type situation in which politics and society are perpetually focused on and organized around the constitutional issues. This “are you pro or anti UK/indy” dynamic plays into the SNP’s hands as elections become less about real policies and what is happening in the world.

     Of course, there once was a Unionist Party operating in Scotland, but that party (which lasted from 1912 to 1965) was basically the Conservative Party in Scotland and took the Conservative whip at Westminster before formally merging with the Conservatives in England and Wales; a new (serious) Unionist Party would have to capture the vast majority of those who voted No from across the political spectrum in the Labour, Tory, and LibDem traditions. However, it is hard to see that happening; it was tough enough keeping the Better Together campaign rolling as a competent operation staffed and fronted by people who were (and still are) opposed to each other on virtually every other issue save for the constitution.

     Now make no mistake: I am a head, heart, and soul supporter of the Union – economically, socially, culturally, and politically, and I dearly wish for the United Kingdom to survive as a country forever. However, I am simply not convinced that the creation of a new Unionist Party is the best way forward.

     Most post-referendum studies have shown that among No voters, only around a third did so primarily out of affection for the United Kingdom and being British; much of the rest did so out primarily out of concern for their personal economic interest and because the case for separation was not convincing, which perhaps explains why some them do not label themselves a “Unionists.” Their support for the Union is not – at least primarily – driven by sentiment and the sense of historical connection to the rest of the UK. As such, they are not the type of people who support the Union come what may and appeals to Britishness and waving the Union Flag may not be helpful among them; they are the people who said that they would have supported separation if they were £500 better off individually, and so their support must not be taken for granted.

     Many of them are primarily concerned about the economy and prospects for themselves and their families, and they were convinced in 2014 that they were better off within the United Kingdom. Who’s to say that at least some of them may not be convinced should another referendum be held – God forbid – within the next few years?

     At the very least, polling ought to be done to find out what kind of support a Scottish Unionist Party would have, and especially if the vast majority of people from all three main parties are willing to join and vote for it. Without that polling however, I am willing to bet that with all of the practical obstacles facing it, an SUP will not likely gain traction as an effective counter-weight to the SNP.

     Going forward, the best option in the long-term will be to support the existing Union parties, who need all the help they can get to recover themselves to respectable positions at all levels in Scotland, especially Holyrood. Indeed, as Holyrood obtains more powers over people’s lives, it will be incumbent upon each party oppose the SNP and offer viable alternatives to the people of Scotland, with a focus on making life better for people on issues such as education, policing, healthcare, welfare, transportation, housing, and – above all – the economy, and moving away from the constitutional issues as much as possible.

     We are already seeing some rumbles of dissatisfaction within the SNP ranks, with the recent announcement on tax policy - keeping the top rate of tax in line with the rest of the UK - being just one area causing some consternation in some sections of the party. To be true, there may not be enough dissatisfaction with the SNP in time for this upcoming election, but it’s there, and Labour, the Conservatives, and the Liberal Democrats need to be ready for those who may become disillusioned and are ready to give at least one of those parties an audience. This, I believe, is bound to happen as the SNP stays in power over a longer period of time with more powers over people’s everyday lives than any previous administration at Holyrood and perhaps find it difficult to please it's broad church of socialists, neo-liberals, progressives, environmentalists, fossil fuel promoters, free-marketers, free traders, social democrats, and hard-core nationalist's.

     However, this is not to say that the Union does not need defenders advocating on its behalf day in and day out, and that’s where campaign groups such as Scotland in Union (SIU) and United Against Separation (UAS) come into play.

     UAS first came about during the referendum and played a major role in it as the “Vote No” page, and like its current name suggests, it is against breaking up the UK and has played more of role in opposing the SNP and pointing out its many contradictions and duplicity on several issues, while SIU came about more out of the aftermath and division caused by the referendum, and is more about promoting a positive message about Scotland and its place as part of the UK, and is not necessarily as much of an “anti-SNP” organization. As such, they are genuinely complementary in various ways – UAS is bigger with more “Likes” on Facebook and has more of an activist edge; SIU has more of a mainstream media presence, and conducts research and polling on Scotland and the Union. Broadly they have the same goal, but with just a slightly different approach.

     Both of them are doing a good job with what they are doing, and last night, SIU held a special gathering to mark this day when Scotland and the UK as a whole dodged a bullet. Going forward, UAS and SIU need to continue on by promoting and supporting the UK, and the ideas that the UK is better for having Scotland and Scotland is better for being in the UK. Their success will be an end to the dominance of the SNP, as well as the reality that separation and nationalism are not good options for Scotland. The byproduct of this will be more Labour, Tory, and LibDem members in Holyrood and Westminster in a much hoped-for return to non-constitutionally aligned politics.

     At an individual level, more people among us need to get involved with UAS and SIU, and volunteer their time leafleting, manning stalls on the streets, knocking on doors, having conversations with people, hosting/holding events, being active online, and generally doing all they can to help spread the word about the Union and its benefits to Scotland, along with how the UK in general is made stronger with Scotland. Part of this should be to make a social and cultural case for the UK in tandem with the economic case, so that there can be an even stronger case against the SNP – one that talks about the UK as a whole and how Scotland makes it what it is because of its people and many other contributions.

     This is likely going to be a long-term effort which will require a lot of work and sacrifice. None of us wanted the referendum and all that has transpired since, but this is where we are, and we have to take this thing one day at a time. There will be progress and setbacks, but with time, I do believe that all of us can do something to make a difference in helping to keep the United Kingdom together in a positive, bold, and confident manner.

Glimmer of Hope? The State of the Race for Holyrood (and Secession)

This year's election won't only decide who takes power at Holyrood, but will also likely set the trajectory of Scottish politics for perhaps another decade.   Kim Traynor  via  Wikimedia Commons   CC

This year's election won't only decide who takes power at Holyrood, but will also likely set the trajectory of Scottish politics for perhaps another decade.  Kim Traynor via Wikimedia Commons CC

     With the Scottish parliamentary elections only three months away, a new YouGov poll for The Times has provided some interesting findings which may provide some hope for those who support the Union and are opposed to the SNP.

     Firstly, with regard to the election itself, the SNP still leads the way voting intentions with 50% in the constituency vote and 42% in the regional list vote, which according to the Scotland Votes election calculator, translates into 69 seats – the exact same number the Nationalists won five years ago. They would still have an outright majority in a legislature supposed to be designed against such outcomes and be elected to an unprecedented third term in power.

     However, this poll is a bit different than previous polls in that it shows comparatively low numbers for the SNP. Polls back in the late summer and fall were showing them getting in excess of 50%, sometimes as high as the upper 50’s and lower 60’s – a reflection of the ascendancy of the Nationalists when they won 56 of 59 Scottish seats in the House of Commons in May. Even now, another recent poll by TNS shows them with 57% in the constituency vote and 52% in the regional list vote.

     Nevertheless, it may be fair to ask whether the SNP has more-or-less reached its ceiling, whether it has maxed out its support among the electorate, and has nowhere to go but down. The answer to this will have to be deferred until after future polling, and perhaps even, until the election itself takes place in order for us to know where the SNP really stands among the voters. With the current polling figures from YouGov, the party will win 69 seats – the same number they won in 2011, which may appear to be a disappointment in comparison to the net gain in seats predicted in other polls.

     Part of the reason for this is that the proportional part of Holyrood’s election system (based on the regional list vote) works against the party that does well in the constituency vote, and the SNP is projected to do really well in that area – capturing all but eight of Scotland’s 73 Holyrood constituencies according to the Scotland Votes election calculator. As a result, the calculator projects that the SNP will get only four regional list seats on 42% of the vote, which leads to the other reason the party may do no better than in 2011: minor parties.

     There may well be some pro-separation voters who will vote for the SNP in the constituency vote – knowing that the first-past-the-post system punishes smaller parties such as the Greens – but then lend their second (regional) vote those small parties in the knowledge that they will register better in terms of proportionality.  As such, the Greens and the Scottish Socialist Party hold 6% and 2% respectively of the regional vote – likely at the expense of the SNP, and for their part, the Greens stand to pick up three seats for a total of five, which means that the pro-independence majority will stand at 74 seats.

     In the face of this, what is there to say about the main pro-Union parties who will have 55 seats among them if this poll were repeated on Election Day?

     For Labour, the outlook remains as dismal as it has ever been since the referendum. The party which only ten years ago had led a coalition government in Holyrood, and whose grip on some parts of Scotland was so tight that votes were said to be weighted and not counted, is sitting at 19% of the constituency vote and 20% of the regional vote, with much of their traditional voting base having voted Yes in the referendum and now voting SNP. If this result were to be replicated in May, Labour would lose all of its constituency seats, and will depend on the regional vote to give it 25 seats. In fact, Labour will take the lead in regional seats even though the SNP carries 42% of the vote, but again, the proportional system will work against constituency-heavy SNP.  

     Meanwhile, the Conservatives will have the same regional vote share, but end up with 19 seats – six less than Labour. However, the Tories do have a one point edge in the constituency vote, and this – combined with the relative collapse of Labour and the Liberal Democrats – is projected to be enough for them to win six constituency seats. Among them is Labour-held Eastwood, whose UK parliamentary equivalent was a Tory stronghold for most of the 20th Century and was once the safest Tory seat in Scotland until Jim Murphy won it in the Labour landslide of 1997.

     That election resulted in the complete wipeout of the Conservatives in Scotland in terms of seats in the Commons, and since 2001, they’ve only held one seat at Westminster and as much as 18 at Holyrood (and currently only 15), thanks to the perception of them being “toxic” during and following the years of Margaret Thatcher. But now they are poised to win 25 seats in May, and this is attributed to the leadership of Ruth Davidson, who is judged to have had a good referendum by campaigning for the Union and putting on a fresh face for the Conservatives. She is currently rated as doing well as party leader by 40% of YouGov poll respondents, as opposed to 36% who say she is doing badly.

     Among those who believe she is doing well includes 46% of Labour voters, which explains another reason for the recent Tory ascendancy in the polls: disillusioned Labour voters who are planning to vote Tory because of Labour’s shift to the left under UK party leader Jeremy Corbyn and Scottish leader Kezia Dugdale’s invitation to those who voted for separation but who may otherwise agree with Labour on everything else save for the constitutional question. They see this as Labour lessening its support for the Union - a point with which I respectfully disagree - and therefore see the Tories as the “only” Unionist party who will stand up against the SNP and speak for Scotland’s place in the United Kingdom.

     Much the same can be said about the Liberal Democrats, who have been paying the price for going into coalition with Conservatives following the 2010 UK general election which resulted in a hung parliament. While Labour and the Tories battle it out for second place (and bragging right for being the official opposition), the LibDems too have, under Willie Rennie, made an invitation to Yes voters to join their party and vote for them regardless of their difference on the constitution, because like with Labour, many of their former voters voted Yes and/or for the SNP. They currently sit at 6% in the constituency vote and 5% in the regional vote, which will be enough for them to hold on to the five seats they currently have, including their only two constituency seats of Orkney and Shetland – which have been in Liberal/Liberal Democrat hands for much of the last century.

     However, these results are not set in stone, and it is possible for the three parties to at least prevent the SNP from obtaining another a majority. The reality is that the SNP has been successful in picking off voters who had traditionally vote for the Conservatives, Labour, and the Liberal Democrats through slippery and slick triangulation – shape-shifting when needed to appeal to certain groups of voters in certain areas. So each party needs to go forth and present itself as the SNP alternative in the parts of Scotland in which they are still strongest. For Labour, this means concentrating on the Central Belt and Lowlands regions; the Borders for the Conservatives; the Highlands and Islands for the LibDems; and the northeast for the Tories and LibDems, with Aberdeen, Dundee, and the areas surrounding them also being potential targets for Labour.

     However, it’s not just about areas, but issues as well. The ongoing row over local council funding cuts has sparked a debate on taxation and how much people should be taxed. On this Labour and the LibDems have taken the side of using Holyrood’s existing powers to raise taxes to improve public services, and according to the YouGov polling, most voters support this proposition, including a clear majority of SNP voters. Another byproduct of the local government funding debate is whether the SNP’s nine year old council tax freeze needs to be brought to an end, as the Scottish Government’s own independent advisor on poverty has recommended. In his analysis, Professor John Curtice said that the freeze “may be approaching the end of its politically useful life, as well as, perhaps, its fiscally sustainable one” as council budgets and services come under increasing pressure and jobs are at stake. 54% of voters now wish to see council tax raised in order to improve local services – effectively ending the freeze.

     This may put the SNP in an uncomfortable position as the council tax freeze has been one of its landmark policies and is very likely reluctant to campaign on raising any taxes, lest it lose the middle class and upper class voters who have been the source of its electoral strength, thanks to them disproportionately benefiting from the freeze and other policies such as free prescriptions and free university tuition. It has certainly found itself on the same side of the Tories on whether taxes should be increased, and Labour under Dugdale is certain to use this point throughout the campaign with at least some belief that the public does stand for taxes to be increased.

     Whether this will work in practice remains to be seen. As Euan McColm said in The Scotsman, the agenda of exposing the Nationalists as faux radicals – “claiming to be left-wing while acting centrist” – may “work if the voters who are keeping the SNP in power were at all interested in hearing that they’ve been conned.” The problem of course, is that some within the middle classes who decide elections and who vote SNP do not see themselves as being conned because as far as they’re concerned, it is they who have benefited pretty well from SNP policies, which have been cloaked under the guise of universalism. Despite what Brian Wilson refers to as the “unctuous self-praise about what a uniquely caring people we are, delighted to pay a little more to help the weak in our midst”, the reality in Scotland according to McColm is that “regardless of the left-wing rhetoric that we hear so often in our political debate, voters remain cautious and self-­interested” (just as they are in England), and both the SNP and Labour – more-or-less occupying the same political space save for the constitution – know this.

     However for Labour, this is about setting itself apart from the SNP as well as the Tories – perhaps in an effort to capture some of their traditional working class vote who may feel conned that the SNP stands with the Tories on not raising taxes. For their part, the Tories have made some noise about the SNP not ruling out tax increases in the future, especially when it’s expected that Holyrood will gain complete control over income tax rates and bands in 2017. On this, they will lay their hopes on picking off middle class support for the SNP. This will likely not put them into power any time soon, but like with Labour fighting for its political life, the Tories have to propose something to differentiate themselves from everyone else, including the LibDems, who under Willie Rennie have also proposed tax increases. With any luck, all three pro-Union may save themselves from losing a few seats and help prevent the SNP from attaining another majority, which is the best case scenario for them.

     However, there is one definite ray of sunshine: support for separation – at least in this poll – is slipping. The last time YouGov asked the question in October, 49% of respondent declared they would vote No and 45% supported Yes; this time, there was a 51% response for No and a 43% response for Yes. With those who said “Don’t Know” and “Would not vote” taken out, this amounts to 55% No and 45% Yes – the same proportion from the actual vote in September 2014, which according to Professor Curtice, “is actually the lowest level of support for independence recorded in any YouGov poll conducted since the referendum.”

     Looking at the internals, 91% each of those who voted Yes and No would do so again; 5% of those who voted Yes in 2014 would vote No in a second referendum, while 4% who voted No would switch their vote to Yes. Breaking down by party, 99% of Tories, 94% of Labour, 95% of LibDems, and 12% of Nationalists at last year’s general election would vote No again; for this year’s Holyrood election, this stands at 99% Tories, 90% Labour, and 8% SNP (the LibDem figures were not available).

     Seen another way, the Conservatives will win 38% of No voters, closely followed by Labour at 34%, the LibDems at 12%, and 13% among the SNP. All of this appears to indicate the support for the Union remains very strong among the three main pro-Union parties, while around 90% of SNP voters either voted, or will again vote, for independence. The only area for long-term concern is the 18-24 age group, who responded in favor of Yes by 55%-45%, while all other groups responded in favor of No.

     At any rate, the YouGov polling shows that – at least for now – a second referendum is a distant prospect, if for no other reason than because of Nicola Sturgeon's own benchmark of having consistent support for independence at 60% or more in the polls for several months before going for it again. If she does go for it before the end of this decade and loses, it will mark a serious and near-fatal setback for the Nationalist cause with back-to-back defeats. It is therefore no wonder that some in the SNP are dreaming of an EU referendum scenario in which the overall UK votes to terminate its EU membership, but Scotland votes to keep it, so they use it as an excuse to call a second referendum based on that fact the YouGov polling currently shows Scots supporting the UK’s EU membership 66%-34%. Barring that circumstance, another referendum looks to be in the offing. As McColm further notes, after the election, Sturgeon will:

"have to maintain support while conspicuously not delivering that second referendum. With the focus off the constitution, perhaps flaws in the SNP’s domestic agenda (and these flaws do exist) will start to become apparent."

     Nevertheless, the pro-Union parties need to step up their own game if they wish to definitively take a referendum off the agenda after May, which requires preventing the Nats – perhaps along with the Greens – from having a majority and at the very least, operating as a minority government and not being able to get through a referendum bill, just as they could not do from 2007-2011. Such a bill would be symbolic and non-binding as constitutional matters remain reserved at Westminster, but if it were to pass, it is difficult to see how Westminster – in the absence of formal rules regulating referendums – can stand in the way if that’s what the majority of Holyrood wants.

     So the Tories, Labour, and the LibDems need to get out and campaign hard by focusing on the issues that matter to people beyond the constitutional arguments. Promises of avoiding a repeat referendum will not gain enough votes to prevent another SNP majority, but dealing with the day-to-day issues and concerns of people (such as health, education, and policing) and offering a positive alternative has the chance of at least making just enough people to think twice before voting for the SNP. Let the SNP wallow in the constitution while for example, council budgets tighten, services are reduced, and people are thrown out of work. Each party has their own strengths, and must use them to their advantage and fight like hell if they wish to upend the consensus narrative of this election year.

Supermajority Rules and Future Referendums

The Scottish Independence referendum required only a simple majority either way., but should have required something more given the gravity of the situation.

The Scottish Independence referendum required only a simple majority either way., but should have required something more given the gravity of the situation.

     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.

The US Constitution features a steep process for amending it. Image Credit:  Mr.TinDC  via  Flickr   CC

The US Constitution features a steep process for amending it. Image Credit: Mr.TinDC via Flickr CC

     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.”

Texas Cannot unilaterally secede from the United States. Image Credit: Public Domain ( Zereshk  via  Wikimedia Commons )

Texas Cannot unilaterally secede from the United States. Image Credit: Public Domain (Zereshk via Wikimedia Commons)

     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.

Following the No Vote in Quebec in 1995, the Canadian Supreme Court ruled that the Unilateral Secession was not permitted. Image Credit: ©  Zorion ,  CC-BY-SA ,  Wikimedia Commons

Following the No Vote in Quebec in 1995, the Canadian Supreme Court ruled that the Unilateral Secession was not permitted. Image Credit: © Zorion, CC-BY-SA, Wikimedia Commons

     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.

Concerns over a Currency Union (or lack Thereof) Likely doomed the "Yes" Campaign in 2014.  Image Credit:  Howard Lake  via  Flickr   cc

Concerns over a Currency Union (or lack Thereof) Likely doomed the "Yes" Campaign in 2014.  Image Credit: Howard Lake via Flickr cc

     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.

The British System May have to change to accommodate formal referendum rules.

The British System May have to change to accommodate formal referendum rules.

     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.”

Although there was no supermajority threshold for the 1975 EEC Referendum, the British Public voted by a two-thirds majority in favor of what was then the Common Market. Image Credit:  MrPenguin  via  Wikimedia Commons   cc

Although there was no supermajority threshold for the 1975 EEC Referendum, the British Public voted by a two-thirds majority in favor of what was then the Common Market. Image Credit: MrPenguin via Wikimedia Commons cc

     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.)

Whatever the outcome of the EU Referendum, the result should be respected for at least 15 years, but also have a supermajority requirement to Ensure that "Change" result is overwhelming. Image Credit:  David Kellam  via  Flickr   cc

Whatever the outcome of the EU Referendum, the result should be respected for at least 15 years, but also have a supermajority requirement to Ensure that "Change" result is overwhelming. Image Credit: David Kellam via Flickr cc

     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.