A positive approach to constitutional change

George Foulkes is seeking cross-party support to change the rules for any new referendum on Scottish independence. This is a wrong, undemocratic, and above all negative way to go. We should instead address the real issues in a positive spirit. We should concentrate on the issues, not try to gerrymander the process.

Process

First, in response to George Foulkes’s suggestion, we should take the advice of the 2018 Report of the Independent Commission on Referendums, which made specific recommendations on both the franchise and whether a simple majority should suffice:

  • For UK wide referendums, the franchise should be the same as for elections to the House of Commons (with the addition of members of the House of Lords who are entitled to vote in local elections). For referendums in Scotland, Wales, or Northern Ireland, the franchise should be the same as for, respectively, the Scottish Parliament, Welsh Assembly, or Northern Ireland Assembly. For regional or local referendums, the franchise should be the same as for local elections in the corresponding area. ($12)
  • Supermajority requirements are extremely rare in other mechanisms for political decision making in the UK. To impose them for popular but not parliamentary decisions would challenge legitimacy. It would therefore be inappropriate to require a supermajority for a referendum. ($33)
  • Foulkes’s suggestion that the franchise should be extended to everyone born in Scotland is particularly unfortunate in reinforcing the idea that this is about ethno-nationalism. One of the most positive things about the Yes movement in Scotland has been its insistence that it is about civic nationalism: Scotland is equally for all who have chosen to live here, whether recently arrived refugees or claiming many generations of Scottish ancestry.

    Issues

    While the Commission advises against changing referendum rules, it does recommend a cautious and deliberative approach. It acknowledges `the case for ensuring that the result of a referendum, especially on a decision that would be difficult to reverse, reflects the settled will of a clear majority of voters. The Commission believes this will be best achieved by locating referendums firmly within broader processes of careful policy development and discussion’ ($34). Brexit of course provides a vivid example of rushing into a decision on an ill-defined proposition.
    Given the current priority of recovery from the Covid pandemic, we have time for such careful consideration of the options; and given the current close to equal division of opinion in Scotland, we should be giving consideration to federal options as well as to the detail of independence. We need an inclusive discussion, and therefore one that is not pre-judged. We should start by accepting that Scotland (and Wales and Northern Ireland if they wish to join the debate) have a right to be independent. Indeed, a good fresh way to look at it is to ask, if the smaller nations were currently independent, what would be the advantages, to them and to England, to be gained from confederation or union? [I wrote on the distinction between federalism and confederalism in LDV last October.]

    Last year’s Report of the Welsh Independence Commission has a thoughtful discussion of confederalism (I have a general impression that the constitutional debate in Wales is less polarised).

    Such discussions could be brought together through a citizens assembly, or (the more old-fashioned way) a constitutional convention, leading to one or more concrete proposals. As the Independent Commission on Referendums stresses, wherever possible, referendums should be held post-legislatively; so a referendum should only be held once the proposal(s) have been well-defined. If there are both an independence and a confederal option, the referendum should follow the format used in Switzerland – which has much experience of 3-way referendums – of comparing the alternatives pairwise, so that the winning proposal has a clear majority over each of the alternatives.

    Key issues to be addressed include currency, the economy, trade, defence and international relations. Each deserves an article of its own, but to make just one point: finding a solution that allows England to continue to enjoy Brexit while Scotland goes back into the EU or at least the single market, has a close parallel to optimising the Northern Ireland situation; it could well be that having both problems to solve might persuade the EU and UK governments to show more urgency in squaring this circle.

    In such constitutional discussions we must strive above all to avoid the mistakes of lack of information and antagonism of Brexit. For each aspect of relations, we should stop scoring points of the `that can never work’ kind, instead asking: How could we make that work best for both sides?

    * Denis Mollison is Chair of Liberal Democrats for Electoral Reform, and has been a member of the party since joining the SDP in 1981. Here, he writes in a personal capacity.

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21 Comments

  • Leekliberal 17th May '21 - 2:08pm

    Dennis
    Your link to the Foulkes proposals didn’t work for me.

  • Denis, your link references that..”Talks have already taken place with…former Lib Dem leader Lord Campbell.”
    What does ‘Ming’ say on the subject?

  • As expected, an informed,thoughtful and interesting article by Professor Mollison. Unfortunately the Scottish Lib Dem leadership appears to have got itself into a pro-Unionist very negative bind at the moment, and we know what happened eventually to the old Liberal Unionist Party.

    A more positive approach, as he suggests, would be to instigate a cool calm study by people, (there are plenty who do – such as Tom Devine for example), who really do know what they are talking about on the issues of independence , especially on the economy, borrowing powers, taxation, welfare, the border, defence and rejoining the EU. I would include Michael Moore in this if he is willing.

    In theory I can see the advantages of Dominion status and the need to revitalise Scottish democracy with bottom up rather than a top down reform. It worked in New Zealand and should be considered in Scotland.

    The issue will not go away and the Greens will supplant the Liberal Democrats as the voice of radical democracy unless the Scottish Lib Dems wake up and rediscover their radicalism

  • Guinevere Barnes 17th May '21 - 4:12pm

    “Squaring the circle” – with compasses and ruler – is theoretically impossible, because pi is not a rational number. So encouraging the EU & UK governments to solve it is not helpful.
    However, there might be solutions to the relationships between NI, Eire, and rUK. Unfortunately I don’t think there are; this situation was warned about pre-Brexit. I even recall one B. Johnson stating that there would be a border in the Irish Sea over his dead body. Still, bring on the unicorns and sunlit uplands.

    On Scottish independence, I agree that there should be discussions and agreement as to the possible shapes of independence/ federalisation/ devolution etc before any referendum. It would be far more productive for the government to engage in such discussions pro-actively, rather than metaphorically crossing its arms, closing its eyes, and saying “Shan’t, Won’t, you can’t make me” like a tantrumy toddler.

  • I’ve not read the Faulkes report, so wouldn’t like to defend or criticise anything he proposes, but the idea of having a majority greater than 50%+1 for something poorly defined that would cause massive upheaval and can be temporarily influenced by a glut of lies, as happened with Brexit, is perfectly sensible. It’s what most organisations require. Even the SNP require a 2/3 majority for a change in their constitution. Just because David Cameron was too lazy and stupid to require one in 2014 or 2016 doesn’t mean we can’t learn from his mistakes.

    However, I think issues such as the size of majority required is a red herring. It’s the poorly defined bit that’s relevant. It’s all very well insisting that it’s only fair to have another vote, but a vote on what exactly? The SNP have been campaigning for Scottish Independence around since the 1934 and it’s the whole reason for the existence of their party and their top policy priority. Nicola Sturgeon has said that Independence transcends everything. And yet there’s still not a proper plan for how it would work. There was the ill-fated “Growth Commission report” which has been quietly swept under the rug because it showed that years of super-austerity would be required. Unfortunately for the SNP and those of us who rely on, or at least value public services, no-one’s come up with a better plan. The easiest way for Westminster wants to postpone a referendum on Scottish independence is to require that the SNP publishes proper plans for what an independent Scotland would be like.

    It’s the same for the franchise. There are pros and cons of extending it to Scots who are temporarily living in other parts of the UK who would be far more impacted by the consequences of the result than someone from outside the UK who is living in Scotland temporarily. Decisions like this should be made by those who have skin in the game. But I appreciate doing so is not straight-forward and opens a can of worms. While I agree that the “Yes Campaign” has been keen to promote itself as a “civic nationalism” the reality is that it’s very often not civil at all. The civility soon breaks down if you are English born and ask questions.

  • Brad Barrows 17th May '21 - 5:09pm

    So a supermajority requirement could mean that a majority of voters vote for independence but Scotland is held prisoner as part of the UK on the basis of the votes of the minority. Sounds a recipe for civil unrest.

  • Denis Mollison 17th May '21 - 5:45pm

    @Guinevere – my use of “squaring the circle” was a professional mathematician’s idea of humour – describing something difficult as though it were impossible. The best solution to the NI dilemma would be to soften Brexit, and the point I was trying to make is that the Conservative government might be more prepared to do that if it was also a Scottish dilemma.

    @Fiona – On the majority and electorate questions, have a look at the Independent Report I reference – it’s thoughtful. But for IndyRef we are where we are: trying to change the rules of the game after recent precedents is simply cheating.

    But I think we agree on the main point of my piece, that “It’s the poorly defined bit that’s relevant.” You mention the widely-panned Growth Commission, with its reliance on keeping sterling. It’s widely agreed among experts that the better alternative is to go immediately to one’s own currency – smaller countries than Scotland have managed that just fine on becoming independent. But it’s an easy target for Project Fear, which may well be why the SNP are reluctant to discuss it.
    In a healthier debate, we would be discussing how far having greater borrowing powers for Holyrood could achieve similar control of our economy within the UK. [I recall Jeremy Purvis producing a Lib Dem report on `full fiscal autonomy’.]

  • John Marriott 18th May '21 - 7:47am

    It may seem a bit draconian to some; but I would stop ANYBODY, who was not actually living in a country having a say in that country’s fate. That should apply to all Brits resident abroad in, for example, our General Elections. Having property here should not be an entitlement either. In fact, I would include this when being entitled to vote in a specific ward or division or constituency in any local election. You vote where you RESIDE, regardless of your nationality.

    Alternatively, why not have a free-for-all? As regards Independence referendums let all of us living in these islands decide if any part wishes to split away! I’ll tell you this. If the English as well were given a vote on Scottish independence in particular, you might be surprised at the outcome!

  • John Marriott 18th May '21 - 9:26am

    And…. not only do you vote where you reside. You should pay taxes there too, whether you are an Oligarch, a Saudi Prince or a trading company.
    @Ian Sanderson etc
    Yes, I was thinking of the 1979 referendum as well. Perhaps a similar arrangement should apply in other elections as well, like getting at least 50% of the popular vote.

  • “Perhaps a similar arrangement should apply in other elections as well, like getting at least 50% of the popular vote.”

    So would you also revoke the right of 16 year and 17 year olds in Scotland (who already have the vote in Council/Holyrood elections which use a form of PR) to exercise their vote in your somewhat contrived and manacled referendum then, John ?

  • Denis Mollison 18th May '21 - 11:11am

    @Ian S – I hope you’re not quoting the notorious 1979 amendment as a good example? It left the SNP with little choice but to bring down the Labour government. Of course we can’t know whether having a general election at a time of Labour’s choosing later that year would have made a difference, any more than whether devolution would have fared better if not delayed by 18 years.

  • I agree that we should not be involved in any attempt to subvert a second referendum.
    We should recognise the right of the SNP administration to call indyref2 even though we we are entitled and indeed obliged to vote against holding the referendum and should also recommend staying in the UK.

    However I think we are missing a key point – as liberals and moderates we are doing nothing to faciliate a compromise. We should recognise that the public are split and either outcome will leave a large number of people unhappy. I dont think the SNP or Tories care about healing the divisions. But we should.

    So we should promote federalism – in effect compromise as an explicit way of trying heal the divisions in our society. That can be our Unique Selling Point and is honourable and viable position, instead we are just the weakest of 3 unionist parties at the moment.

  • “we are entitled and indeed obliged to vote against holding the referendum and should also recommend staying in the UK.”

    Oh no, we’re not.

  • ‘try to gerrymander the process.’

    Giving votes to a 16 year old,refugees, EU citizens but not Scottish nationals that happen to be living elsewhere in the UK is not gerrymandering the process?

    ‘Supermajority requirements are extremely rare in other mechanisms for political decision making in the UK. ‘

    Huge difference between decisions to change a voting system, leave a trading agreement & break up a 300 years old country.

  • Denis Mollison 18th May '21 - 3:01pm

    @john oundle – “Giving votes to a 16 year old,refugees, EU citizens but not Scottish nationals that happen to be living elsewhere in the UK is not gerrymandering the process?”
    Correct! For clarity, I don’t mean refugees who just turned up yesterday (though those from England wishing to escape Johnson’s regime should maybe be an exception 🙂 ); I just agree with the Independent Report (and I think international good practice) that the electorate should consist of those who live here. Extending the franchise to 16 and 17 year olds is particularly appropriate as they will have to live with the consequences longest – and is in any case LD party policy for all elections.

  • Denis Mollison 18th May '21 - 3:03pm

    @doug – “we are missing a key point – as liberals and moderates we are doing nothing to faciliate a compromise”
    I think that’s what I’m trying to do here, though not because it’s a compromise but because I think the best solution would be somewhere on the borders of “devo-max/indy-lite”.

  • Andrew Melmoth 18th May '21 - 3:54pm

    Imagine EU citizens in the UK had been given a vote in the referendum in 2016 and their votes had swung it for Remain. Would the Brexiteers have quietly and gracefully accepted defeat?

    In the 2014 referendum the majority of voters who were born in Scotland voted for independence. This fact was barely remarked on and no pro-independence politicians sought to make political capital out of it. The commitment of the independence movement to civic as opposed to ethnic, Farage-style, nationalism is real and fundamental. The principle that a country’s future should be determined by the people who live there flows naturally from it.

  • Peter Hirst 24th May '21 - 4:58pm

    Leaving aside confedarilism because I don’t know what it is we have 3 options, status quo, independence or federalism. Assuming the CA goes for federalism I would accept a confirmatory referendum. I think a super-majority is appropriate as is a minimum turnout with an embargo to further ones of 5 years. I prefer present status to history for the franchise. Once you’ve left you’ve left.

  • Clive Sneddon 5th Jun '21 - 12:40pm

    It looks as if the first thing we need agreement on is who shall be entitled to vote. Then we will need a proposal in a Bill which has gone through its parliamentary stages but is yet to receive Royal assent. And those who propose to campaign for and against will need to have a clear communicable vision of why this proposal is or is not a good thing.
    My view on who should have the vote is that a national referendum requires all who are UK nationals to have the vote wherever they live because they are British, and everyone who stays here but is not a UK national should have the vote because they will be affected by the outcome and pay taxes here. These criteria should apply in all elections.
    I would suggest the age of consent is a reasonable starting point for the right to vote, in which case everyone over the age of 16 should have the vote, again in all elections. That may imply bringing the age of majority down to 16, but not necessarily. That issue would need a separate review.
    What I have said implies a UK-wide referendum, as all nations will need to have a voice in creating a federal or confederal UK, meaning the nations will have their votes published separately. The worst outcome would be one in which the English were seen to be holding back everyone else. Anyone wishing to draft a legislative proposal would have to work out how to persuade the English.
    In case anyone wants to know, I am a Londoner, an Englishman of Scots descent, resident in Scotland for more than half my lifetime, and a European.

  • The voting age in all council and Holyrood Scottish elections is already 16. This also applied to the last referendum in 2014.,

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