Dr. Nicola McEwen, Academy of Government
Dr Nicola McEwen, Director of Public Policy at the Academy of Government, provides an assessment of the Electoral Commission’s recommendations on the Scottish independence question. She argues that in spite of the speedy acceptance of the Commission’s key recommendations, the details of their report pose challenges for both the Scottish and UK Governments.
But it is beyond even the Electoral Commission to devise a question that satisfies its criterion of being unambiguous. Simply asking if Scotland should be an independent country leaves open the question of what being an independent country would actually entail.
The publication of the Electoral Commission’s report into the referendum question (.pdf) marks another milestone on the long road to Scotland’s independence referendum. We now know the question Scots will be asked in autumn 2014: ‘Should Scotland be an independent country? Yes/No’
This is a modification of the original question, but the new formulation was immediately accepted by the Scottish Government, and both the Yes and No campaigns. It is ultimately a matter for the Scottish Parliament to decide whether it will pass the government’s referendum bill once tabled, but the SNP majority and the emerging consensus on the question wording and other process issues should make for a smooth legislative ride.
In testing the question, the Electoral Commission was following rules set out in the Political Parties, Referendums and Elections Act 2000 (PPERA). The main criterion in PPERA relates to a question’s ‘intelligibility’. This is interpreted broadly to mean that the question should be succinct, neutral, easy to understand and unambiguous. In the context of a pre-legislative independence referendum, it is not possible to satisfy all of these criteria.
Both the original and revised questions are succinct, being considerably shorter and more to the point than the more convoluted questions of previous constitutional referendums, for example, in Wales and Quebec. The question in both formulations was also deemed easy to understand. Compared to previous referendums, the Commission reported unusually ‘high and consistent levels of understanding’ among the research participants about what they were being asked, and most were able to vote according to their preferences. This was put down to familiarity with the independence issue in political debate over many years, and its current prominence on the political and media agenda.
The original question fell short only on the grounds of neutrality. Some participants in their research felt that the original ‘Do you agree…’ formulation could lead voters towards a positive answer and made it more difficult to say ‘no’. Asking a ‘Should…’ question was deemed more impartial. These findings strongly echo the Commission’s research and recommendations relating to previous referendum questions in Wales, the North East and in the UK-wide Alternative Vote referendum. It is essential that the referendum is seen to be fair, with a neutral question, and I welcome the Commission’s revision.
But it is beyond even the Electoral Commission to devise a question that satisfies its criterion of being unambiguous. Simply asking if Scotland should be an independent country leaves open the question of what being an independent country would actually entail.
Inevitably, there will be competing visions of what independence would mean for Scotland within the context of the debate, and no-one can say for sure what the outcome of independence negotiations would be. This lack of clarity may make it more difficult to secure majority support, but a YES vote in this context would carry considerable legitimacy. The question, as posed, is effectively asking voters whether Scotland should be in independent country come what may.
The Commission’s report poses challenges to both advocates and opponents of independence.
The Scottish Government spent much of last year emphasising the continued associations that Scotland and the rest of the UK would share after independence. Independence would not cut Scotland off from its neighbours, but would mark a new relationship with the rest of the UK. A partnership of equals, in which we continued to share a social union, a monarchy, a currency union, a labour market, an energy market, a common travel area, and a variety of other possible institutions and services. Independence was even deemed compatible with continuing to feel British. One could be forgiven for questioning what would be different under this vision of independence. And yet, the Electoral Commission’s report indicated that its research participants – and the Commission itself – still regard independence and separation as one and the same. As the report notes:
While people initially articulated their understanding in different ways, it was clear from further discussion in the interviews and groups that, with one or two exceptions, participants had a clear understanding – without seeing or asking for any explanatory information – that ‘independent country’ referred to Scotland being separate from the rest of the UK. (Para 3.40)
Perhaps most of all, the Commission’s research revealed a hunger for greater information and clarity on what independence would mean in practice, and the process by which it would be achieved. Providing clarity on these issues is not within the gift of the Scottish Government. It can set forth its vision of independence, but almost everything will be subject to negotiation with the UK government, the European Union, NATO and a range of other stakeholders. The oft-repeated mantra of UK government ministers is that there will be ‘no pre-negotiation’ before the referendum. This is clearly politically pragmatic but, by extension, it means that clarity on the meaning of independence will be hard to come by.
The Electoral Commission has called on both governments to clarify the process that will follow the referendum ‘in sufficient detail to inform people what will happen if most voters vote “Yes” and what will happen if most voters vote “No”’. This passage from the report indicates how difficult it may be to separate process from substance. The recommendation potentially pushes the UK government toward uncomfortable terrain. Having insisted that the Scottish Government follow the Commission’s advice, it will be difficult for UK ministers to now ignore it.
The current process towards a referendum contemplates a referendum campaign and referendum on independence, which if successful would trigger negotiations on independence, and the need for a new Scottish Constitution. Referendum first, constitution-making second. It appears to be largely assumed that Scotland’s constitutional future is largely settled by the label ‘independence’, when in fact some type of new constitution would need to be designed. While the referendum process has been the subject of much debate, the question of Scotland’s post-referendum constitutional process ‘after the fact’ has been much less discussed.
