Scottish Affairs CommitteeWritten evidence submitted by True Wales

1. Which jurisdiction should conduct such a referendum and what is the legal and/or moral basis for such a determination?

The UK Government should be responsible for conducting a potential referendum on Separation for Scotland on the grounds that either a Yes or No outcome would have profound consequences across the UK. It is notable that the Silk Commission report on tax and constitutional arrangements in Wales has been delayed in anticipation of the outcome of the referendum in Scotland.

However, the referendum should occur in collaboration with the Scottish Government to minimise any preventable chance of conflict. The referendum should be conducted in the modern spirit of a devolved Scotland which enjoys reciprocal benefits as an equal part of a successful union of nations.

2. How should such a referendum be initiated eg should it be via provision in the Scotland Bill?

The referendum should be initiated via provision in the Scotland Bill.

3. What lessons can be learned for the process of conducting a referendum from the experience of other referenda in the UK, including the March 2011 referendum for the devolution of further law making powers to the Welsh Assembly Government?

(i) The choice of question for the referendum on separation for Scotland

In the case of the 2011 referendum in Wales on direct law-making power for the Assembly, those of us on the No side of the argument consider the question itself to have been deeply flawed. The most glaring error, in our view, was to allow the inclusion of a denial in the question on the ballot paper that a Yes vote would bring tax powers to the Welsh Assembly:

The Assembly cannot make laws on subject areas such as defence, tax or welfare benefits, whatever the result of this vote.

This statement was included despite a clear commitment on the part of the UK Coalition Government to a Calman-style inquiry in the event of a Yes vote, as promised in its Programme for Government, 20th May 2010. As we pointed out at the time, the Electoral Commission would have been aware that the Calman Commission dealt principally with tax and borrowing powers for the Scottish Parliament. It is a serious matter that the people of Wales were misled on this issue, not merely by the denials of politicians but also by a stubborn refusal to modify the proposed referendum question itself.

We regret the fact that the vote on the supposed “minor tidying up exercise”—as it was promoted by Assembly politicians and a number of MPs before March 1st—is now being seen as an historic and overwhelming endorsement of the devolution record to date and a green light to further dramatic constitutional and fiscal changes. This has occurred even though only 23% of voters supported the change and almost 300,000 people voted against it.

Indeed, on 15th July 2011, the leaders of the four main Assembly parties called for the Welsh Calman Style commission—now known as the Silk Commission—to have a wider remit than purely finance; it will look at the possibility of devolving other powers to the Assembly including the legal system and energy projects.

We believe it is essential that in the referendum on Separation for Scotland the question is clear and unambiguous. It should not make the issue a technical matter including an option for Devo Max or Devo Plus; this would not only ensure an obfuscation of the central issue leading to public confusion but might also elicit little more than a sense of collective boredom, leading to apathy and a low turnout. The question should be simple, with a Yes or No answer, asking the people of Scotland whether they wish to separate from the rest of the UK or, alternatively, whether they wish to remain a part of the UK.

(ii) Funding of campaigns

Another important factor in the arrangements for the referendum was the funding of the respective campaigns. Electoral Commission guidelines stipulate that an organisation can only be designated as a lead campaign if it “adequately represents those campaigning for the relevant outcome”. We were accused by politicians in the Yes camp of not being sufficiently representative of No campaigners. Our response to that is that such claims are inappropriate when those on the No side were left largely unrepresented by a political class which overwhelmingly failed to express the concerns of thousands of people. The fact that almost 300,000 people voted No despite the efforts of leaders of all the main political parties, certain unions, the third sector and the Church shows just how serious it is that elected politicians failed to represent a large proportion of the voting population.

It is continually claimed by some in the Yes campaign that the low turnout in the recent referendum was a direct result of True Wales refusing to accept taxpayers’ money. The Electoral Commission’s document, Key Principles for Referendums guidelines, stresses that there “should be no barriers to campaigners putting forward arguments for any of the possible outcomes” and that “the process for designating lead campaign organisations for each outcome (and consequent distribution of public funds and access to media) is easy to understand, and accepted as fair”. We suggest that there were significant barriers to participation in this process, as laid out by the Political Parties, Elections and Referendums Act (PPERA), for a grassroots campaign such as ours.

In the final week before the applications were due to be submitted, it became evident to us that it better suited our campaign to continue as we were, putting all our energy into leafleting door-to-door and in town centres to ensure that our No arguments reached as many ears as possible. We did not, therefore, decide to abstain from applying in order to scupper the Yes campaign but because the funding on offer under the rules would not have benefited us as a No campaign.

The statement in the guidelines that the “extent to which the applicant is an “umbrella organisation coordinating the activities of a number of member organisations” would be considered in the designation of campaigns, played a minor part in our decision. Our membership comprises individuals, many of whom belong to the Labour, Liberal and Conservative parties or to no party at all. Unlike the establishment led Yes campaign, which formed an umbrella over the leaders of the main political parties, unions, third sector groups as well as the Church hierarchy, True Wales could not be described as an umbrella organisation. Grassroots members of those very organisations were involved in our campaign. However, the fact that we could not describe ourselves as an “umbrella group” left us vulnerable to the damage that would have been inflicted if our application had been turned down. This was, though, a risk that we would have been prepared to take.

When the PPERA was devised, it had perhaps not been envisaged that the two sides in a referendum might be so different in type. The Yes campaign had established promoters with access to pre-campaign funding and continuing financial support. The No campaign was a common interest group of ordinary people without significant funding or access to it.

We had never at any point intended to accept all of the funding from the Electoral Commission—although, right up until the last days of the Electoral Commission deadline, we were absolutely determined to apply to be the lead campaign. We believe that accepting the full £70,000 would have rightly been perceived as hypocritical behaviour from a group that condemned cavalier attitudes on the part of many politicians towards public money. Ultimately, though, the rules meant that in reality we had little choice but to abstain from applying. Having formerly registered, in any case, for designated campaign status, we fought as we began—as a grassroots campaign.

A major factor in our decision not to apply for lead campaign status was that funding was to be released to the campaign teams too late for us to make maximum effective use of it, and was too heavily tied up with restrictions on its use to allow the No campaign to use it to deliver its own strategy. The funding could only be used to cover infrastructure costs—that is “staff and office costs”, but “not the costs of campaigning materials”. The assumption of the referendum financing scheme was that the referendum, like Assembly Elections, would be conducted from local premises; however, modern day politics has moved on to communications via documents, broadcasting and electronic media. Funding was not on offer to campaigns to spend either on leaflet communications or electronic media deployment.

The designated lead campaigns were to be declared on 2nd February 2011 in preparation for four weeks of campaigning. We had little money to spend in advance of any forthcoming funding and would, therefore, immediately have been placed at a disadvantage to the comparatively well-resourced Yes campaign in not being able to spend any money until we received it. Under the rules, we would have received the initial instalment but only “as soon as reasonably practicable”; given this time scale, it would have been virtually impossible for us to use it for office space—the only commodity we were allowed to spend it on—even if we had wanted to do so. We thought we could perhaps invest in a “mobile office” (ie touring van) and refuse the additional £49,000. We certainly could not have established the “multiple offices in order to communicate with voters” that the Electoral Commission considered “may be desirable”. Had it been possible to spend some of the funding on campaign literature, our decision might have been different.

The free postal delivery of one piece of literature to every elector was, on the surface, appealing but, ultimately, was not free; we would have had to fund the printing of 1.3 million leaflets and arrange their boxing and enveloping for the Post Office, an absolute impossibility given our financial position as a subscriptions-funded grassroots campaign. Following our decision not to apply for lead campaign status, IWA director John Osmond, calculated that “printing 1.3 million leaflets sufficient to reach every Welsh household” would cost in the region of £24,000. He suggested that this sum was “within the sights of the Yes campaign, but not the No campaign”. He was absolutely correct in citing this as a major reason why True Wales decided against registering as the lead campaign.

We had also read about the prohibitive cost of the “free” leaflets in the North East of England. According to the Electoral Commission report, the printing cost in one case was £87,000. As the rules stated that no money could be spent on campaign literature, it is only right that we should acknowledge that we were deeply concerned at the idea of Yes material reaching every household while we would have had no choice but to forfeit the not-so-free postal delivery. This, we believe, would have given the well-resourced political establishment an even greater advantage in the dissemination of propaganda than was currently the case; such a situation would not have brought an equitable and democratic debate to the people of Wales.

During the course of our campaign, we produced about 150,000 leaflets which we distributed in all parts of Wales. We raised that money through subscriptions and small donations. Our detractors accused us of stifling debate by not applying for lead designation status and denying the Yes campaign taxpayers’ money. We believe that it is important to point out that without us—a group of ordinary people who are not politicians—there would have been no debate at all and this fundamental constitutional change would have been nodded through without the whisper of a No argument. Even the most vociferous Yes advocate must surely acknowledge that that would have shown our democracy here in Wales to be in a very poor state indeed.

(iii) Turnout in the Welsh Referendum

In our view, the low 35% turnout resulted not from a lack of referendum literature but from a number of other significant factors. After all, the Electoral Commission, in accordance with its guidelines, published an impartial “household voter information booklet” which would be the “core communication” to ensure that each voter was properly informed. In essence, we believe that not enough people saw this vote as relevant to their day-to-day lives; in this sense, the restriction of the debate to a narrow technical matter failed to ignite the imagination of the people of Wales, as well as denying the electorate a proper discussion on the devolution journey.

The decision to hold the referendum on a separate day to the Assembly elections meant that the referendum became not only £5 million more costly, but also less likely to attract a high turnout. As Peter Browning pointed out in his evidence to the Lords’ Committee on the Constitution (12th Report of Session 2009–10), “On past evidence of referendum turnout in the UK”, it was “doubtful whether voters would turn out to vote in similar numbers as for elections” and added that “low turnout would weaken the legitimacy of the result” (p 112). Michael Marsh, Professor of Comparative Political Behaviour, Trinity College, Dublin, suggested that one of the difficulties with referendums is that voters “do not necessarily want to know, they have much more important things on their mind”(Q.174). Professor Butler cited “the rapid decline in turnout in Switzerland, often viewed as the European exemplar of direct democracy” (Q.6). Many of us on both sides of the campaign have readily admitted to difficulties involved in conveying the importance of this vote to a large number of citizens.

The Key Principles for Referendums guidelines determine that “there should be integrity and transparency of campaign funding and expenditure”. Beyond official funding, this is very difficult to ensure as there is no requirement on campaigns to declare sources of funding during the referendum period. Ascertaining those sources were, of course, problematic even after the event. We do not believe that the public has been fully informed as to how much material/financial help (including labour) was provided to the Yes campaign by political party offices, the unions and by third sector organisations which receive Assembly funding. For our part, we ran our campaign on just under £4,000.

Some witnesses to the aforementioned House of Lords Committee argued that referendums “tend to be dominated by elite groups, including politicians, the media, and wealthy individuals”, rather than “ordinary” citizens. Dr Uwe Serdült, Centre for Research on Direct Democracy (c2d), asserted that “the arsenal of direct democracy is an institutional weapon for organized interests (political parties, interest groups, employer’s and employee’s associations) and not for the people as such” (p 137). Peter Browning warned that referendums were rarely if ever free from influence by politicians and minority groups (p 112). Despite the efforts of the Electoral Commission throughout the process, this referendum on direct law-making power for the Welsh Assembly reflected that trend. Our experience demonstrates that the current arrangements under the Political Parties, Elections and Referendum Act do not provide for an environment within which a group comprised entirely of ordinary citizens can feasibly operate as a registered lead campaign.

(iv) Lessons to be learned from the March 2011 Referendum in Wales

In Wales, few politicians who leaned towards a No vote because they were concerned about where the devolution journey was leading us dared to speak out. Perhaps they feared being perceived as disloyal to their Party or did not want to be accused of being “anti-Welsh”. Politicians—including those at Westminster—who favour keeping Scotland in the United Kingdom should not leave the outcome of a referendum on Separation to chance. They need to demonstrate that supporting Scotland’s place in the UK with representation in the EU, the UN, NATO, the G20, the World Bank and the IMF is pro-Scottish, not anti-Scottish. If the debate is one-sided, the people of Scotland will be deprived of a chance to hear important arguments which will inform one of the most significant political decisions of their lives.

The question on the ballot paper is a key factor in any referendum: the Welsh question focused on the technical matter of direct law-making powers in the devolved areas, rather than on the expansion of the devolution journey desired by the Cardiff Bay political class. The outcome of the referendum has been interpreted as an assent to the latter. For the sake of legitimacy, the question in the referendum on Separation for Scotland should reflect the reality of what will happen in the event of a Yes or No vote. It would not be appropriate to obfuscate the matter with complicated diversions on the desirability or otherwise of Devo Max or Devo Plus, either of which constitutional arrangements could emerge via the evolution of devolution without a referendum.

March 2012

Prepared 4th May 2012