Scottish Affairs CommitteeWritten evidence submitted by Vernon Bogdanor, Research Professor, Institute of Contemporary History, King’s College, London.

1. This evidence deals primarily with two problems. The first is whether the issue or issues to be decided in the referendum is for the Scottish electorate alone to decide; or whether the rest of the United Kingdom should also be consulted. The second is whether there should be a multi-option referendum. The evidence also discusses briefly the issues of eligibility to vote and timing.

2. Two fundamental principles need to be observed for a referendum to be legitimate. The first is that a referendum is held in the interests, not of governments or political parties, but of the electors. Its purpose is to allow voters to express their opinion on a major constitutional issue. The second is that the procedures to be held, including eligibility to vote and the precise wording of the question, should not be decided by those with an interest in the result. The players should not also be the referee. Therefore, such questions should be decided by the United Kingdom’s Electoral Commission which has an office in Edinburgh and a Commissioner with specific responsibility for Scotland.

3. The question of timing is a matter for political judgment. My own, for what it is worth, is that the sooner the referendum is held the better. There are a limited number of arguments for and against independence, and for and against devolution. To allow the next 30 months to be dominated by the constitutional debate would be harmful to British politics since it would distract attention from the many major economic and social issues in the United Kingdom which need to be confronted. Moreover, it would be likely to harm the Scottish economy since businesses may be unwilling to invest in Scotland amidst a climate of constitutional uncertainty. That was certainly the experience with Quebec before its two referendums on independence.

4. The issue of independence is one for the Scottish people alone; although of course the terms of independence must be a matter for negotiation between the Scottish government and the government of the United Kingdom. It is now generally conceded that if it is the settled wish of a particular part of the United Kingdom that it wishes to secede, it should be entitled to do so. The history of Britain’s relations with Ireland from 1885 to 1922 shows the danger of refusing to accept this principle.

5. The issue of further devolution—for example, devo-max—is, however, one for the United Kingdom as a whole, for it alters the terms on which Scotland remains within the Union. In principle, there is no reason why there should not be a referendum on devo-max in the rest of the United Kingdom as well as in Scotland. But that would lead to problems were Scotland to vote “Yes” to devo-max, and the rest of the United Kingdom to vote “No”. That, no doubt, is one of the reasons why the referendums on devolution in 1979 and 1997 were restricted to Scotland. MPs from the rest of the United Kingdom may be understood as having tacitly surrendered the right of those they represent to a referendum. There is a good reason for this. England is by far the largest part of the United Kingdom, containing around 85% of the population. If the English are united on an issue, their wishes will undoubtedly be reflected in Parliament. The continuation of the Union depends in large part on a sense of self-restraint on the part of the English. That self-restraint was not shown in relation to Ireland after 1885. It has so far been shown in relation to Scotland. Of course, at some point it is perfectly possible that English tolerance and patience will come to an end. If that happens the Union will come to an end. It will certainly come to an end were the English to insist on pressing their role as the dominant nation in the United Kingdom to its limits.

6. The issue of further devolution is very much on the political agenda. Alex Salmond, the First Minister of Scotland, has declared that while his favoured option is independence, he would like to see a third option of further devolution on the ballot paper in the referendum. The Prime Minister has indicated that, were the Scots to reject independence, the government would seek to implement a further unspecified measure of devolution. But he takes the view that the referendum should pose just a single question—whether or not the Scots should seek independence. His argument for this is that the referendum should produce a clear, decisive and unchallengeable outcome.

7. The difficulty with the Prime Minister’s position, however, is that the devo-max option seems at present to be the favoured option of the Scots, being more popular than either the status quo or independence. It would be odd to have a referendum in which the most favoured option were to be excluded from the ballot paper.

8. The United Kingdom referendum on the alternative vote in 2011 illustrates the weakness of this approach. Survey evidence indicated that the preferred option of those who favoured a new electoral system was some form of proportional representation, not the alternative vote. Yet the option of proportional representation was not on the ballot paper. Perhaps that is one reason for the low turnout in the referendum—42%—and the general lack of interest in it. Democracy was not well served by this referendum.

9. It would, moreover, be unfair to ask the Scots to reject independence without specifying precisely what the alternatives were. To suggest that there is a mystery prize which cannot be revealed until after independence is rejected is hardly satisfactory. Further, Scots may remember that Lord Home in 1979 told Scottish voters shortly before the referendum that, if they rejected the Scotland Act, a Conservative government would produce an improved version of devolution. In the event, the Scotland Act secured a narrow majority in the referendum, insufficient to persuade Westminster to implement it. The Conservative government which came to power shortly after the referendum did not, however, implement its promise to produce an improved version of devolution. A suspicious Scottish voter might fear that, if she were to reject independence, and if the SNP were then to be defeated in the Holyrood elections in 2015, Westminster might then forget about devo-max and the status quo would be preserved.

10. Since the purpose of a referendum is to suit the interests, not of governments or political parties, but of the people, there must be a strong case for a multi-option referendum. That would require Westminster to specify before the referendum precisely what it was prepared to concede in terms of further devolution to the Scottish Parliament in the event of independence being rejected.

11. Of course, there is a problem if no option secures a majority in a multi-option referendum. But that problem is not difficult to resolve. It was resolved in New Zealand in referendums on electoral reform through the device of a run-off referendum. In 1992, a referendum was held in two stages. The first stage asked two questions. The first question was “Should the current first past the post system be retained?” The second question was, “Regardless of how you voted under Part A, if there was a change to another voting system, which voting system would you choose?” Voters were then offered four alternative voting systems.

12. The run-off referendum took place on the same day as the 1993 general election in New Zealand. The preferred alternative in the answer to the second question in the first referendum, a proportional representation system, was put against first past the post. Proportional representation was victorious and duly adopted for the 1996 general election. In 2011, a further two-stage referendum was held to discover whether New Zealanders wanted to change; but they decided to retain proportional representation.1

13. It would be perfectly feasible to have a run-off referendum in Scotland—perhaps two weeks after the first referendum—if no single option secures a majority in the first referendum. That would allow Scots to reflect carefully on the choices available. The United Kingdom government has argued that “two options should generally be preferred, as this avoids ambiguous results and should help voter comprehension”.2 But the experience of New Zealand shows that there is no reason why the outcome of a multi-option referendum should not be clear-cut, decisive and legitimate. The experience of New Zealand also shows that voters are perfectly well able to understand the various choices available in a multi-option referendum. There is no reason why Scottish voters should be any less sophisticated. It would be patronising to argue otherwise.

March 2012

1 Further details of the New Zealand referendums can be found in Vernon Bogdanor, The Coalition and the Constitution (Hart, 2011).

2 Constitution Committee, 4th Report (2010-11) Government Response to the Report on Referendums in the United Kingdom (HL Paper 34), p 11.

Prepared 4th May 2012