Scottish Affairs CommitteeWritten evidence submitted by Peter Kellner, President, YouGov

The purpose of this note is to consider some of the issues that could arise should the proposed referendum in Scotland invite voters to consider three options rather than two.

I shall label these three options, “status quo”, “devo-max” and “independence”. For the purpose of this analysis, however, the precise labels do not matter; my central argument is that any three-option referendum raises issues that at one level are technical but, at another, raise questions about the nature of a democratically legitimate outcome.

Of course, a decisive outcome could dispel all doubts. If, say, 60% of voters prefer one option, and 20% each of the other two, then the result is beyond question. The problems would arise if none of the three is the first choice of a majority of voters.

These are various ways in which a three-option referendum could be held. And the choice of system could decide the outcome. Here are five examples of different approaches to a three-option referendum.

1. First-Past-the-Post

Scots would put a cross against their favourite system, just as they plump for their favourite candidate in general elections. Suppose this produces the following result:

Status quo: 34%.

Devo-max: 30%.

Independence: 36%.

The most popular choice is independence. Scotland would go its own way, even though fewer than 50% of Scots voted for this outcome.

2. Alternative Vote

This is the system proposed for Westminster and rejected in last May’s UK-wide referendum. People put a “1” against their favourite option/candidate, “2” against their second, and so on. The winner needs 50% support.

Suppose my FPTP example above reflects first choices. None of the options passes the 50% mark, so the least popular choice, devo-max, is eliminated. This would bring into play the second choices of the 30% who put a “1” against devo-max. Suppose they divide 20–10 in favour of the status quo rather than independence. Then the final outcome would be:

Status quo: 34% + 20% = 54%.

Independence: 36% + 10% = 46%.

On these figures, the status quo would prevail.

3. Two Questions—Version A

This is the method that Scotland’s First Minister has been reported to favour. People would be asked two questions: would they favour or oppose a move from the status quo to devo-max; and would they favour or oppose full independence?

I would expect a large majority of supporters of independence to prefer devo-max to the status quo. In my example, suppose the 36% supporting independence divides 28–8% for devo-max. Then the referendum would produce a clear 58–42% majority for devo-max over the status quo, while (assuming the same calculations as in system 2 above) rejecting independence by 54–46%.

4. Two Questions—Version B

The first question would ask people whether they wanted to keep the status quo or change to a different system. The second question would ask which system people wanted if change were to take place. If the first question produced a majority for the status quo, that would be the end of the matter. But if a majority wanted the system to change, then the results of the second question would decide which change was implemented. In my example, devo-max would again emerge as the winner.

5. Condorcet Voting

The eighteenth century French philosopher, Marquis de Condorcet, proposed a new way to establish which option is preferred more than any other when three or more options are on offer. His method can be likened to as a mini soccer league, with each option as different club. Under the Condorcet system, there would be three votes, equivalent to the three matches that would be needed for each option to “play” each other. Thus voters would be asked three questions: (a) would they prefer the status quo or devo-max? (b) the status quo or independence? (c) devo-max or independence?

In my scenario, these would be the results of the three votes:

Devo-max beats the status quo (assuming those who give independence as their first preference mainly prefer devo-max to the status quo).

The status quo beats independence.

Devo-max beats independence.

In this illustrative scenario, devo-max emerges as the preferred choice.

Those five methods produce three different outcomes, each of which could be deemed to be democratically legitimate. And although methods three, four and five produce the same outcome in this scenario, there are conditions under which they would not—or where there could at least be some doubt. Suppose support for independence rises, so that under method three, the two votes produce the following outcome:

Vote 1: Devo-max 65%, status quo 35%.

Vote 2: Independence 52%, status quo 48%.

These results could be interpreted in two ways. Supporters of independence could claim a majority for their ambition, and argue that Scotland should move towards separation from the rest of the United Kingdom. Opponents of independence could argue that, implicitly, devo-max is more popular than independence, and that Scotland should remain within the United Kingdom but with greater “devo-max” powers.

Methods four and five would resolve this issue, by giving electors an explicit choice between devo-max and independence.

There is another way to proceed, which could remove doubts about democratic legitimacy. It would be to follow what New Zealand did twenty years ago when it decided to change its voting system.

New Zealand applied method four, as outlined above, but held two referendums. The first, on September 19, 1992, was a non-binding referendum. It asked voters two questions: did they want to change the country’s voting systems and, if change were to happen, which system would voters prefer?

On the first question, voters divided 85–15% in favour of change.

On the second question, a clear majority of just over 70% backed a mixed-member proportional system (MMP); the other three options gathered a combined total of just under 30%.

A second referendum was held a year later, on November 6, 1993. This was binding. It offered voters a straight choice—the status quo or MMP (as this had emerged as the favourite “change” option in the first referendum). This produced a 54–46% vote for MMP. New Zealand’s election system was duly changed.

This two-referendum approach could be applied to Scotland. As outlined in method 4, the first referendum could ask (a) people whether they wanted to move away from the status quo, and (b) if change were to happen, would people prefer devo-max or independence.

If vote (a) produced a majority for the status quo, then that would be the end of the matter.

If vote (a) produced a majority for change, then Scotland’s Government would start negotiations with the British Government on how to implement in detail whichever option emerged victorious from vote (b).

When those negotiations were complete, a new referendum would be held—the status quo, or the arrangements (whether for devo max or independence) that had been negotiated with London.

In practice this is likely to produce the same outcome as a Condorcet-method referendum—although the dynamics of a two-referendum process mean that views could change between the first and second referendums (as they did in New Zealand: MMP won far less decisively in the second referendum than seemed likely after the first referendum).

Some people, such as Robert Hazell of the Constitution unit, have argued for a two-referendum process in any event, even if only two options are on offer: status quo or independence. This would allow people to judge the basic principle in the first referendum, and the outcome of detailed negotiations in the second. If three options are to be offered to Scotland’s voters, then a two-referendum process offers an added advantage: that the legitimacy of the final outcome would be largely proof against doubt and dispute.

February 2012

Prepared 4th May 2012