I’ve now had a chance to think further about the Scottish Government’s consultation paper on an independence referendum, published on 25 February. (The first post about it is HERE, and the paper itself is available here. There are three substantive points of interest in it; the way it defines the electorate for the prospective referendum; what it says about the options put to voters should be framed; and how it proposes the referendum should be regulated. But most interesting is what this shows about the way the SNP conducts constitutional politics.
Regarding the first, the paper suggests using the local government franchise for the referendum – the same as for Scottish Parliament elections, which differs from the Westminster franchise in several respects. The most important one is that the local government franchise gives a vote to EU and Commonwealth nationals resident in Scotland, as well as UK and Irish ones.
As for the second, the paper offers two possible ways of offering several options in a referendum. Those options are the obvious ones of the status quo, some form of enhanced devolution such as the Calman recommendations (though what form of enhanced devolution might be on offer is an issue it leaves open), and independence. This could be done by a straightforward multiple choice referendum, with respondents asked to rank the various options in order. as in an alternative vote election. (The paper confusingly compares this to a single transferable vote election, which will be familiar to Scottish electors – but of course there will only be one ‘winner’ here, so the STV parallel is a poor one.) The other option on offer is a set of questions: do you favour the status quo or something more? Do you favour enhanced devolution or independence? This follows the model used in 1997, when the first question was about devolution, and the second about taxing powers. While it does open the door to some anomalies (it would be possible to vote for both the status quo and independence, for example), this is clearly the better option from a constitutional point of view. It provides a way of offering several options for constitutional change, in such a way that a clear outcome can (probably) be obtained. The most damaging prospect, of course, would be a result that is sufficiently unclear and confused that the losers cannot accept that it is the will of the majority, and so a substantial minority reject the legitimacy of what is proposed.
But most interesting is what the paper says about the third option. Here, it’s an omission that is notable. The paper carefully and deliberately proposes to create a ‘Scottish Referendum Commission’ to run the proposed referendum, rather than using the Electoral Commission. Practically all the substantive proposals for the administration of the referendum are replicated from the UK legislation (the Political Parties, Referendums and Elections Act 2000, or PPERA to its friends). The key difference is the exclusion of the UK Electoral Commission from running it. The paper, tellingly, doesn’t offer an explanation of why the Electoral Commission is not to be used; it simply proposes the establishment of the Scottish Referendum Commission for the task.
There are three possible explanations for this. First, there’s a desire not to have a possibly partial body involved in the referendum. After all, the Electoral Commission is a UK public body, and its accountability lies to Westminster not Holyrood. On practical levels, it could take views about the Scottish referendum that were at odds with those of the Scottish Government or Parliament.
Second, this approach avoids having the Commission advise on the ‘intelligibility’ of the referendum question. The Commission has a developing body of guidance on this, deriving from such experiences as the 2004 referendum on elected regional government in North East England (its report on that is available here), and ones on elected mayors for English local government. Indeed, the complexity of the questions offered on the sample ballot papers in the Consultation Paper would probably not pass muster with the Electoral Commission. There’s no obvious bias to them, but they are rather convoluted and wordy. Consider this (the proposed ballot paper for ‘devolution max’ on page 20 of the Consultation Paper):
The Scottish Parliament has decided to consult people in Scotland on proposals to seek the transfer of more powers to the Parliament.
Proposal 1 is on this ballot paper. Proposal 2 is on a separate ballot paper. You can vote on both proposals.
Background to Proposal 1
The Scottish Government, in the paper Your Scotland, Your Voice (published on 30 November 2009), set out a proposal for extending the powers and responsibilities of the Scottish Parliament while Scotland remains part of the United Kingdom.
Under this proposal the Scottish Parliament would, with certain exceptions, be responsible for all laws, taxes and duties in Scotland. The exceptions, which would continue to be the responsibility of the United Kingdom Parliament, are—
defence and foreign affairs, financial regulation, monetary policy and the currency.
Proposal 1 – Increased powers and responsibilities for Scotland
The Scottish Parliament should have its powers and responsibilities extended as described above.
Do you agree with this proposal?
Compare it with this – the question approved for the North East referendum:
You can help to decide whether there should be an elected assembly in the North East region.
If an elected assembly is to be established, it is intended that:
• the elected assembly would be responsible for a range of activities currently carried out mainly by central government bodies, including regional economic development;
• local government would be reorganised into a single-tier in those parts of the region that currently have both county and district councils.
Should there be an elected assembly for the North East region?
This suggests that the Electoral Commission’s standards would require a rather different approach to the framing of referendum questions (and perhaps the structure of the referendum itself – the multiple-question approach) than Scottish Ministers might like.
Third, the purpose may be symbolic: to emphasise the authority of the Scottish Parliament, and the Scottish people, in making all decisions about the conduct of a referendum. It’s a clear SNP strategy to advance the nationalist cause in a general way, by making it clear that all such decisions are made in Scotland. They seek to emphasise the primacy of the Scottish arena, regardless of the particular details of the scheme, to centre Scottish politics in Scotland and on Scottish issues.
It’s not the first time that the SNP have done this; the abandonment of the local income tax is another case. In that instance, the SNP claimed it was abandoned because they did not have the votes to support it in the Scottish Parliament, but that had been clear from the autumn of 2007 once the details of the government’s proposed scheme had become clear. What had changed were external factors; the refusal of the UK Government to allow the Scottish Government to receive council tax benefit funds if there were no council tax in Scotland, and the refusal to allow HM Revenue & Customs to act as the collection agent for the new tax, meaning it would have to be collected by local authorities at disproportionate cost.
None of these explanations excludes the others, and the relative importance of them is not easy to judge. But it’s worth bearing the last in mind as an explanation not just for the choice of a Scottish Referendum Commission rather than the UK Electoral Commission, but also for the careful drafting of the Consultation Paper more generally and the thorough way it airs the issues. After all, it’s pretty evident at this point that the referendum bill is going to make minimal progress when it’s introduced at Holyrood, and that a referendum certainly won’t happen before the 2011 elections. The expressed determination of the unionist parties, collectively, not only to block the bill when it’s introduced but to give it minimal discussion or attention in the Parliament too means that the SNP will want to give the questions affecting a referendum all the publicity they can. Doing it in this way helps them by keeping the issue alive for as long as possible.
The Scottish Government has set a deadline for responses to the consultation of 30 April 2010. The web-page for the consultation is here.