To be published as HC 1608-iv

House of COMMONS



Scottish Affairs Committee

the Referendum on Separation for Scotland

Wednesday 7 March 2012

Professor Vernon Bogdanor, Professor John Curtice, Peter Kellner and Professor Iain McLean

Evidence heard in Public Questions 258 - 357



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Oral Evidence

Taken before the Scottish Affairs Committee

on Wednesday 7 March 2012

Members present:

Mr Ian Davidson (Chair)

Fiona Bruce

Jim McGovern

Iain McKenzie

David Mowat

Pamela Nash

Mr Alan Reid

Lindsay Roy


Examination of Witnesses

Witnesses: Professor Vernon Bogdanor, Research Professor at King’s College, London, Professor John Curtice, Professor of Politics, University of Strathclyde, Peter Kellner, President, YouGov, and Professor Iain McLean, Official Fellow in Politics, Nuffield College, Oxford, gave evidence.

Q258 Chair: I welcome you to this meeting of the Scottish Affairs Committee. We are very grateful to you for coming along. Could I start off by asking you do you agree that any question that begins, "Do you agree?" is a loaded question?

Professor McLean: Including that one, Chairman?

Chair: Yes.

Professor McLean: Yes; I agree that any question beginning, "Do you agree?" is a loaded question, including the one you have just asked.

Professor Bogdanor: The question should not be one for the players in the game, either the Scottish Government or the United Kingdom Government, but for a neutral referee such as the Electoral Commission.

Professor Curtice: Yes, but I think you have to be aware that we have a history of potentially biased questions in referendums in the UK accepted by the Electoral Commission. The question in the case of the Welsh referendum was, "Do you want?" The question in respect of the AV referendum was, "Should?" Certainly we have a fairly consistent pattern in the UK of asking questions that, first, focus on the proposition for change and, secondly, simply ask people whether they want that change or not. We do not do what you would do on any survey, which is to say to people, "Do you agree or disagree?", or "Do you want or do you not want?" We could argue about the word "agree", but it is also true that the practice of referendums in the UK is already one that results in questions that, from a survey perspective, would be regarded as biased.

Peter Kellner: As a pollster, I try to avoid attitudinal questions to which the answers are yes or no. Like John, I would say as a pollster, "Do you agree or disagree?" You offer both options. I think that is important in polling because you are asking people to give an off-the-top-of-the-head view, often on subjects they have not thought about, and there is often a subconscious human preference to say yes rather than no.

In a referendum I am not sure in the end that it matters very much. At the end of a referendum campaign, when people are casting their vote, they will have been bombarded for days, weeks and months with the opposing arguments. I suspect the precise form of question wording-as it were, the positive versus the negative-probably does not matter all that much.

Q259 Chair: We wanted to raise that issue because it is one that has been raised in Scotland in the context of whether the referendum should be run in as fair and unbiased a manner as is possible. There has been a great deal of anxiety about rigging of the referendum, which is why we wanted such an august panel as yourselves to advise us on precisely these matters, but enough of flattery. Can I just clarify the extent to which you believe that a referendum is appropriate for discussion of such matters, first, of independence versus non-independence, and then, secondly, gradations of devolution? Again, maybe I can start from the other end.

Peter Kellner: I have to say, Chairman, that as a matter of broad constitutional principles referendums are a thoroughly bad thing. We have had them in Britain for 50 years. They started off in Wales on local pub opening in the early 1960s, and, rather like grey squirrels, they have infested our political ecology and done constitutional damage. However, I do not think we can turn the clock back now, given that the last Scottish election was fought on the basis that any change in the constitutional arrangements would be by referendum. I would rather not be where we are, but, where we are, we have to have a referendum. The two issues are whether two or three options should be in the referendum and whether one referendum is enough, or whether you need an advisory referendum and then at some time later a referendum to decide whether to go ahead with whatever is then negotiated.

Professor Curtice: I would argue, similarly to Peter, that there is a de facto convention that significant constitutional change in the UK now requires to be legitimated by a referendum. Certainly, given that the Scottish Parliament in 1999 was created in the wake of a referendum, again, particularly following the precedent of Wales, moving from a body that only had secondary legislative powers to a body that had primary legislative powers, that would start to require a referendum. One has to say that at some point one decides that a departure from the current status quo of the Scottish Parliament is sufficiently significant that it requires further legitimation in the eyes of the electorate.

That said, clearly what is true is that for a referendum to be effective, whatever is on the ballot paper and how many things are on the ballot paper, they need to be well defined and clear. To pick up one of the nuances of your question, a referendum is not going to be a suitable instrument for deciding the fine details of exactly which taxation powers should or should not be devolved to the Scottish Parliament. At some point somebody would have to define a package and thereby put it to the electorate, in much the same way as political parties put a whole package of policies together to people so that they can therefore make some kind of effective choice on the occasion of an election.

Professor Bogdanor: I believe there is a strong argument in principle for having referendums on these matters because the opinion of the people may not be the opinion of the parties that represent them. There is a very good example of that in Wales in 1979, when three of the four parties in Wales favoured devolution but it was rejected in a referendum by a majority of four to one, which showed that on that issue the political party did not necessarily represent the public.

On matters like the terms of independence, there is another precedent in Ireland in 1921, which is a rather tragic one. After the treaty was agreed, there was a civil war in Ireland over the terms. That civil war might have been prevented if there had been a referendum in order to get the opinion of the people on it, which could have legitimated the decisions reached.

Professor McLean: For a referendum to be acceptable, clearly the people have to know what they are voting on. One can say that Scottish independence is a pretty clear concept. Even that would have to be qualified by the fact that, right now, the Scottish Government are being very active in telling us what, from their perspective, Scottish independence would and would not involve. Indeed, I detect some change in the Scottish Government’s position on what independence would involve.

The issue applies with even more force in relation to some proposal for devolution-max, since none of us know what this proposal would be. As you all know, the First Minister has said that it is not for his party to propose it because it is not the policy of his party. On the other hand, it is clear-it came out in our evidence and may come out in further questions-that there is quite a head of steam in Scotland behind something called devolution-max. There is certainly a case for defining it in such a way that it is fit to be put to the people in a referendum.

Q260 Jim McGovern: Welcome here, gentlemen. What is the constitutional status of a referendum? Is the result authoritative, advisory or is it just consultative? Could somebody give me an opinion on that?

Peter Kellner: It can be any of these things, depending on how it is framed. For example, let me give you one precedent that might be helpful. Twenty years ago, when New Zealand changed its voting system, which was another case where there were more than two options for and against, they had two referendums. The first one was advisory and they asked two questions. The first question was broadly, "Do you want to keep with the present system or change it?" The second question was, "If there is to be change, there are four options and which do you prefer?" A clear majority voted for change and a clear majority voted for a mixed-member system, which you have in the Scottish Parliament. There was then legislation in Parliament. It was passed subject to a second referendum, which would be binding. The second referendum was to keep things as they are or go for the mixed-member system, which the first referendum had shown was the most popular change. The first referendum was advisory and the second was mandatory. That may be a model that you might ponder adopting for Scotland.

Q261 Chair: I want to be clear. It was the New Zealand Parliament that decided that the second referendum would be mandatory.

Peter Kellner: Yes, because the decision on whether the referendum is advisory or mandatory is a legislative decision.

Professor Curtice: In exactly the same way, in the Parliamentary Voting System and Constituencies Bill that went through this institution 12 months ago, it was written in such a way that the relevant clauses in terms of changing and switching to the alternative vote would come into effect if there was a positive vote in the referendum. To that extent at least, this Chamber-this institution-decided to hold what was for all practical purposes a binding referendum. I think, though I stand to be corrected, that that was also true of the second referendum in Wales because it came under the Government of Wales Act 2006.

In contrast, the 1997 referendum in Scotland and, indeed, the 1997 referendum in Wales were simply referendums off the back of a White Paper, and the legislation came afterwards. The truth is that you can have a pre-legislative referendum that will always be advisory because you then have to pass the legislation, or you can have a post-legislative referendum that may be binding if you write the Bill in that way.

Let us just stick to the one question that everybody seems to agree should be on the ballot paper, which is to do with independence. Everybody seems to be accepting that this would, in practice, be an advisory referendum, because neither this institution nor the Scottish Parliament is proposing to pass an Act declaring Scotland as independent subject to a referendum happening. Both sides seem to accept that what we are talking about is a referendum that would be advisory in a technical sense but that both sides would regard as binding on them politically so far as what then subsequently happens.

Q262 Chair: I want to clarify that difference between-and I am trying to remember the wording exactly-advisory in a technical sense but binding politically. Surely that is just sophistry, in the sense that if it is politically binding, it is binding.

Professor Bogdanor: It used to be thought that we could not have a binding referendum in this country because Parliament is sovereign. When we had our first national referendum in 1975, Edward Short, who was then Leader of the House, said the Government would be bound by the result but Parliament cannot be bound, though one would not expect MPs to go against the wishes expressed by their constituents.

As Professor Curtice has said, the two referendums this year-the one on primary powers for Wales and the referendum on the alternative vote-were both binding referendums, and the Government has proposed in the European Union Act that any referendum on the transfer of power to the European Union should also be binding. You may argue, Chairman, that this is a purely theoretical difference, but suppose that in a referendum on Scottish independence, on a very low turnout, you had a very small or wafer-thin majority for independence. Let us say for argument’s sake there was a 25% turnout; 13% voted for independence and 12% against. You might then say, "Perhaps we ought to think again; perhaps it should not be binding", and give Parliament some leeway to consider after the result what ought to be done. There is some sort of difference here.

Professor McLean: I have nothing to add, Chairman.

Q263 David Mowat: On that point of binding, the premise of that would be that there were no substantive issues still to be negotiated.

Professor Curtice: Absolutely.

Q264 David Mowat: I was wondering, in your distinction of a referendum, whether or not the first referendum of the two might almost be permission to negotiate, and then in the second referendum you say, "Now you negotiate and come back to me with a package." It seems to me that there is such complexity in a case like this and the devil is in the detail. I can see that the two-stage referendum could be quite useful in that regard. Is that what you meant?

Professor Bogdanor: You raise something very fundamental here, if I may say so. The terms could be of vital interest. Those who favour independence in Scotland favour a certain relationship with the rest of the United Kingdom after independence. The term "shared sovereignty" is sometimes used. Of course, an independent Scottish Government could only propose certain terms. Whether they were agreed or not would depend on the negotiating position of the rest of the United Kingdom.

It may be that, after independence, the terms actually achieved are much less good than were hoped at the time of the referendum. That is certainly a powerful argument, in my opinion, for saying that there might be a further referendum after the negotiations had been completed. I think the question of the terms is very fundamental.

Professor Curtice: Absolutely, and, certainly if one goes back to either of the two proposals of the Scottish Government before the most recent one in terms of what the referendum question would be, I am certainly on record as having said that my view would be that the UK Government would be perfectly at liberty at the end of the negotiations to insist on a second referendum. As you know, the current Secretary of State floated that idea a few weeks into office and, shall we say, was not thanked for his pains. The truth is that at the moment, politically, the impression we are all getting is that both the UK Government and the Scottish Government now agree that there should be only one referendum and it will be, in effect, a pre-legislative advisory referendum. If this Committee takes a different view, then I am sure that will be of interest.

Q265 David Mowat: The point I was making in response to your point is that you almost have to have all the substantive negotiating points complete by the time you have that referendum for it to be useful.

Professor Curtice: Yes; sure.

Peter Kellner: It seems to me that if you are going to have a binary referendum-status quo or independence, say-you have a choice. You can either have it advisory and pre-legislative or mandatory and post-legislative. Either option is open to you. If you are going to go in for a three-option referendum, it would be incredibly difficult and messy, if not impossible, to have it as a mandatory post-legislative referendum because the legislation would have to have a number of options. If you are going to go down the three-option route, in practice you have to have an advisory referendum and then you decide whether the mandate is sufficiently strong to require a further referendum after the legislation.

Q266 David Mowat: But that could be years afterwards, could it not?

Peter Kellner: The timing is in your hands.

Q267 Lindsay Roy: Is it the dominant practice to have a referendum on one specific proposal, or is it common to have a referendum that gives Government a mandate to negotiate the terms of independence? Maybe the answer is yes to both.

Peter Kellner: I gave you the New Zealand example where, with electoral reform, they started off with four possible new systems and they went through that two-stage process. I am sure Vernon and Iain will know more than I do. It is very much more common round the world for referendums to be binary. Do you make this change or do you not make it? New Zealand shows that you can have a multiple option referendum system.

Professor Curtice: Vernon will probably think of other examples, but there are certainly two widely cited examples of multi-option referendums being used in order to determine the constitutional status where there were felt to be more than two options. One is Newfoundland in 1948 and there are three Puerto Rican examples. The answer is that most referendums are binary, but there are examples both of constitutional and non-constitutional issues, including issues that would potentially lead to succession, using multi-option. They are relatively rare.

Peter Kellner: Of course, in Scotland in 1997 you had two questions. There was the principal one, but there was also the second question on tax-varying powers.

Q268 Chair: Surely, to be fair, that was somewhat different on the basis that the second one was consequential upon the result of the first? It was not posed against in any way.

Peter Kellner: Sure.

Professor McLean: Equally, there are dangers in binary referendums when the underlying opinion is not binary. The example I draw attention to in my written evidence is the Australian republic referendum in 1999. Most of us probably agree that this is a difficult area in which there is no one optimal solution. All four of our written evidence documents tend to show that.

Q269 Lindsay Roy: Would you agree that a referendum in terms of a mandate to negotiate the terms of independence could be perceived as a pig in a poke or writing a blank cheque?

Professor McLean: I wonder if the sharp distinction that may have appeared at first between, for instance, what the previous Scottish Government were proposing, which is what you have just described, Mr Roy, and what we are now facing is not so sharp after all. What we are now facing is a proposal for an authoritative referendum, but, as all my colleagues have said and was said earlier in questions, even after a yes vote people would not know on what they were voting because there would then be hard negotiations on some matters, which will be obvious to members of this Committee-on Faslane and the debts of the Royal Bank of Scotland. These negotiations could not possibly be concluded in advance of the referendum. Therefore, the referendum that is now being discussed, in my view, is not so different in that respect from the one that the previous Scottish Government proposed.

Professor Curtice: In answer to you also, frankly, it depends on politicians in the two Governments. The Scottish Government have said they will publish a White Paper on their timetable in the autumn of next year. That presumably is meant, from their point of view at least, to be their definitive understanding of what independence would mean. We have yet to hear what the UK Government think they would do in terms of advising the Scottish public of their perspective on the question and whether or not they are going to come with a document at all.

Q270 Lindsay Roy: We have had a bit of shifting sands over the last few months.

Professor Curtice: Absolutely, yes, sure. I guess you should not be surprised in so far as one of the functions of any campaign, be it for a referendum or for election, is to expose the arguments of the various sides to critical scrutiny. Occasionally, politicians change their minds during the course of election campaigns because they see they are not winning the argument.

Q271 Lindsay Roy: That is what this meeting is about in terms of critical scrutiny.

Professor Curtice: Sure; absolutely.

Q272 Chair: I want to seek clarification relating to the previous question. Are there any examples-and this is a distinction between an advisory and a mandatory referendum-where a referendum has made a decision, the vote has been cast and it is clear what the result was but that has not been implemented?

Peter Kellner: I can give you an example close to you. The Swedish Government, about 40 or 50 years ago, wanted to switch from driving on the left to driving on the right. They held a referendum and, by a very large majority, people voted to continue driving on the left. Shortly afterwards, the Swedish Parliament decided to change to driving on the right. There has not, as far as I am aware, been civil war since, but that is a clear example of Parliament, not immediately but after a short interval, overriding a referendum decision.

Q273 Chair: Is that the only example?

Peter Kellner: Denmark did something similar on voting age. As I recall, the public voted against cutting the voting age to 18 and Parliament decided, not very long afterwards, to cut the voting age to 18.

Professor Curtice: There are some famous examples inside the European Union of both Denmark and Ireland not liking the answer the first time around and holding another referendum.

Q274 Chair: But at least they had to do it again.

Professor Curtice: At least they had to go and do it again, yes, absolutely. It depends again on the constitutional status of the referendum. In so far as a referendum is constitutionally required in order to change the constitution, as in the case of the Republic of Ireland, for example, then it is impossible not to make the change unless in the end you get a positive vote. It depends on the constitutional status of the referendum. Clearly, when you are dealing with a policy issue such as whether you drive on the right or on the left, then, arguably, it is somewhat easier to ignore the referendum than it is where the referendum is constitutionally mandated.

Professor Bogdanor: You may argue that the Scottish referendum of 1979 was almost an example of that, except there was a 40% threshold imposed by Parliament. In fact there was a small majority for devolution, but it was not implemented for political reasons.

Q275 Chair: But, to be fair, that was the rule that was known before the vote was cast.

Professor Bogdanor: Yes, certainly.

Q276 Chair: Why I am asking this, just coming back to this question about the distinction between a binding and an advisory referendum, is that if there are no examples where a referendum has not been implemented-apart from the somewhat bizarre examples that you have mentioned from Scandinavia-then the distinction to some extent between purely advisory and mandatory is a false one.

Peter Kellner: That is right if it is accepted that that referendum is the sole occasion when the electorate decides, but if you have a two-stage process, then the voters themselves can override in the subsequent mandatory referendum what they said a year or 18 months earlier in the advisory referendum. This is potentially quite relevant here. If there is a referendum, whether it is two options or three options, we know what no means but we are not quite sure what yes means. If you were then to have a post-legislative mandatory referendum, it is perfectly conceivable that you could get a yes majority the first time round and a no majority the second time round.

Professor Curtice: But it would still be the case, Peter, that the first referendum would be politically binding in the sense that the stance of the current UK Government seems to be that, if Scotland were to vote in favour of independence, it would accept that it has an obligation to enter into negotiations.

Peter Kellner: Sure, yes.

Professor Curtice: Chair, you should hardly be surprised in a democracy that politicians, once they decide to ask the public, very rarely go against what the public say, because it is not usually the route to political popularity, shall we say.

Chair: I understand that.

Professor McLean: Except that there have been historic occasions, including within the UK, in which those pressing for a referendum were quite certain in their firm belief ahead of time what that referendum would lead to, and if it had led to something different there might have been some political changing of mind. The example I have in mind is Ireland a few years before the events that Vernon spoke of a moment ago. The opposition-then the Unionist party-led by the great advocate of parliamentary sovereignty, Professor A V Dicey, among others, said that the devolution plans of the then Government were illegitimate because they did not reflect the will of the people. Professor Dicey and his friends were quite certain what the will of the people was-that it was on their side.

It is all counterfactual because there was no referendum. There is no very strong evidence that the will of the people was what Professor Dicey and the leaders of the then opposition thought it was. I am pretty confident that, had a referendum been held and had it led-as it might well have done-to the result that the people were in favour of Irish Home Rule, we would then have heard a different argument from the Unionist party at the time.

Q277 Chair: I was labouring that because, as you will probably be aware, we have had other panels of lawyers in front of us who have argued about the distinction between binding and advisory referendums and who has legal powers to conduct one and in which circumstances. If it is clear, as I think it is from what you are saying to us, that in reality there is no distinction between binding and advisory referendums, then that obviously has legal implications.

Professor Curtice: Chair, as far as I understand this debate, the difference between a politically binding referendum and a legally binding one may be crucial because the whole debate is about what the purpose of a Bill that the Scottish Government passed would be. There, I suspect, the legal distinction might matter. We are here, I think, all talking as political scientists and saying that politically it would be crucial. The legal distinction may matter in this instance, given the way this historic matter is worded.

Chair: That is what the lawyers said, although at considerably greater length.

Q278 Jim McGovern: If it is not legally binding, is it fair to say that any UK citizen could challenge it and take it to court, if they had enough money?

Professor Curtice: The answer is that quite clearly, under the Scotland Act, anybody can claim that what the Scottish Parliament is doing is ultra vires and take it all the way to the Supreme Court if the judges are willing to hear the case. That is true of anything the Scottish Parliament does.

Q279 David Mowat: I want to return to the point about it being binding because I am still a little puzzled. If there are still things to be negotiated, by definition it must be possible to not agree. Therefore, it must be possible for both sides to say, "They are not acting in good faith and we cannot go ahead on this basis." Therefore, it cannot be binding if there are substantive things still to be negotiated.

Peter Kellner: That is precisely why I would personally suggest a two-stage process. It is for precisely that reason.

David Mowat: I quite see that myself; exactly.

Q280 Iain McKenzie: To clarify that point, what you are suggesting is that it is binding to the point of commencing negotiations and then there should be a further referendum on the outcome of those negotiations.

Peter Kellner: Yes. My personal preference would be an initial referendum that gives the green light-or not-to open negotiations. If it gives the green light to negotiations, negotiation would lead to legislation, and in the legislation it would say, "This will come into force 30 days or whatever after a referendum that produced a yes majority."

Professor Curtice: But then you need to realise, depending on which side of the argument you are in terms of the Scotland Act, that a referendum of the kind that Peter has just described, his first referendum, may be something that the Scottish Parliament can do without necessarily the authority of this institution. There is an interaction between the argument about the purpose of the referendum and therefore its legality, and whether you have one or two referendums.

Q281 David Mowat: Or you could do the negotiation without a referendum. You could do all the negotiations and say, "This is what it would be. We have both acted in good faith and now it would be binding."

Professor Curtice: But you are not going to be surprised to hear that the UK Government are probably not going to accept that position.

Peter Kellner: That option is certainly there but only if it is a binary choice. I cannot see myself how you could have a binding post-legislative referendum on three options.

Professor McLean: An historical example, which may be helpful, is the negotiations preceding the Anglo-Irish Treaty of 1921 in which at great speed negotiators on behalf of the two countries, Ireland having declared itself unilaterally independent, came to a remarkable range of agreement over a remarkable range of things. That would be a point in favour of prior agreement. On the other hand, as Vernon said earlier, that agreement, although implemented by both Parliaments, later led to civil war in Ireland.

Q282 Pamela Nash: I think I am right in saying that there is agreement that it is possible to have a referendum with three options, although that has been pretty rare up until now in the world of politics. However, do you think it is fair that the Scottish Government’s proposal to put these three options forward would be put forward in just two questions, with the assumption that those who voted no to those questions were just agreeing with the status quo?

Professor Bogdanor: As I understand the Scottish Government’s proposal, a voter would be able to vote for two of the three options. I think that is quite wrong. The way to do it would be that you vote an X for one option and then, if no option reaches 50%, you have a run-off between the top two a week or two weeks later, which has the further advantage that, if one of the options remaining is independence, it gives Scottish voters a further chance to reflect on whether they really want independence or not.

The fundamental argument for the third option is that it seems from opinion poll evidence in Scotland that this is the option most Scots favour. They prefer it to the status quo or independence. It would be very odd in an instrument designed to discover what the Scottish people think to exclude the option that they most favour. It is very important, if that is the case, that the British Government then specify-and that would be for Westminster to decide-precisely what powers they are prepared to devolve to Scotland. There must be a clear specification. It cannot be a kind of mystery prize at the end and people do not know what it is unless they reject independence. Both the British Government, and the Opposition for that matter, would need to clarify what powers they are proposed to cede in some further devolution legislation, if they are prepared to do that.

Peter Kellner: It may add to the gaiety of the afternoon but for the first time I think there is a difference among us. I half agree with Vernon. There are two quite distinct issues. One is whether three options or two options should be available. My own personal view is that it is quite clear that devo-max in some form is a major player and has a lot of popularity. It would be perverse for that not to be an option. I agree with Scotland’s First Minister to the extent that there should be three options. However, I think that his particular proposal and separately Vernon’s different proposal are both wrong. If you are going to have three options, there are at least five different ways in which you could have the ballot paper and count the figures. It is quite conceivable to imagine circumstances-I have tried to set it out in my evidence-where you could get three different outcomes on the same array of public opinion depending on your system of counting.

The flaw in the First Minister’s proposal can be illustrated as follows. Suppose the first question-status quo or devo-max-produces 65-35% in favour of devo-max. Suppose, because of his very successful campaigning, he converts what is now a minority in favour of independence into a narrow majority. The second question-independence versus status quo-is 51% for independence and 49% for status quo. Both questions have produced a majority for change, but which change then should take place? I imagine the First Minister in those circumstances would say, "51% want independence; so Scotland should have independence." Almost everybody else would say, "It is as plain as a pikestaff from those figures that devo-max is more popular than independence."

One way to solve this is to have a third question on the ballot paper, which is, "If there is to be change, which would you prefer: devo-max or independence?" That would, as it were, break that tie, but that is not what the First Minister has proposed.

The problem with Vernon’s proposal, which is an alternative vote thing, is that it is quite possible that devo-max will come third on the first count. It will then be the one that is eliminated, and the second vote will be between the two extremes. If I say the word "Condorcet", do I need to explain this?

Chair: He is a dead French guy. We have had a note about him.

Peter Kellner: On any Condorcet calculation, devo-max would be the winner, but under Vernon’s system it might be the loser. What should be strived for, either explicitly or implicitly, is the Condorcet winner in this three-option process.

Professor Curtice: I largely agree for reasons I go through in the paper. The truth is that there is no one single option at the moment that commands the first preference support of 50% of the Scottish public. I did the calculation this morning. If you take all of the opinion polls that have asked people to choose between the three options that have been asked, you get 29% in favour of independence, 30% in favour of devolution-max and 30% in favour of the status quo.

The crucial thing, as Iain explains in his paper and he will say more in a moment, seems to be that it looks as though devolution-max is the clear Condorcet winner, basically because virtually everybody who is in favour of independence is willing to vote for devolution-max. The question then, however, is how you should structure and count the ballot paper. Iain mentions one way, which is essentially that you do it on a preferential ballot and then you count it in such a way that you identify the Condorcet winner. That is one way. The other way, which I come to in my paper and which is a little bit of a compromise but in a sense, arguably, could be said gives everybody what they want, is a different kind of two-question referendum from that which has so far been discussed.

First of all, we have the straight clear question that everybody seems to agree that they want, which is, "Do you want Scotland to become an independent country or not: yes or no?" Then you can have the second question, or, if you want, you can have a second referendum, which is more of a nuanced argument, which then says, "If Scotland remains part of the United Kingdom, do you want to have devolution-max or do you want to have the status quo?"

This is a completely different way round from the way the First Minister is thinking about it. It is also the opposite of saying, "Do you want change or not?" It gives you the clear-cut question that the UK Government say they want, the SNP says is its first preference and would give a clear choice on the issue. You could then also refer on the ballot paper to Scotland remaining in the Union. In effect it is another variant on the New Zealand referendum, but, instead of making change in general the gateway question, you make whether you stay in the Union or become independent the gateway question. Because there is this secondary issue about what Scotland’s relationship within the Union might be if it stays within the Union, you then ask that question separately.

The crucial thing about doing it that way is that it does not give any incentive to those whose first preference is independence not to vote for devolution-max. Therefore, it reduces the danger that because of tactical considerations you fail to get the Condorcet winner expressed. You should get the express support of over half the public. This is the kind of implicit thing that everybody states, which is worth bringing out. Nobody in this room presumably objects-maybe Alan Reid would if he were here-to the idea that an MP, as long as they have more votes than anybody else, is elected. Implicitly, everybody brings a different criterion to the issue of referendums. We seem to want the winner to have to have at least 50% support. Given that, therefore, you also need a procedure that in some way or another ideally ensures that you get 50% support. That is a more difficult multi-option referendum and maybe you can do it by doing it structurally in that way.

Professor McLean: Probably never in parliamentary history has the same dead Frenchman been mentioned in a single witness session by three witnesses, namely, Peter, John and myself. Members may note that Peter’s and my witness statements, which say essentially the same thing, were written entirely independently. The immediate conclusion is that at least Peter and I disagree with the idea of a run-off referendum for these technical reasons. In my witness statement I have given a suggestion for how, where it is so minded, Parliament or the Scottish Parliament could not only determine the Condorcet winner among three options but, in a point that has not yet been mentioned, deal ahead of time with the contingency that the options bit each other’s tail-that there was no Condorcet winner. In that event, I suggest that the parliamentary rule that the status quo prevails where there is a failure or a tie on the motion would be the one to take.

Q283 Lindsay Roy: It is not quite as simple as that because there are gradations from the status quo through devo-plus, devo-max, indy-light and so on. It is not as simple as a three-option referendum.

Professor Curtice: No, sure. That is why I said in response to an earlier question that we would have to reach the situation where there was a developed package behind which there seemed to be a degree of head of steam but it was the version of devo-max or devo-plus or whatever. Let us just call it significantly more devolution than would be introduced once the Scotland Bill has been implemented, in exactly the same way as before the 1997 referendum somebody had to define exactly what powers were going to come out of devolution. You are absolutely right. The referendum will only work if, at the end of the day, somebody up there comes up with a proposition that everybody else is willing to agree should be on the ballot paper.

Q284 Lindsay Roy: So there is clarity about it.

Professor Curtice: Absolutely, sure; yes.

Professor Bogdanor: This is a matter for Westminster to decide, as to what further powers it is prepared to devolve. In that connection, Chairman, could I point to an embarrassing misprint in my evidence?

Chair: We were going to come to that.

Professor Bogdanor: It said, "The issue of further devolution…is not, however, one for the United Kingdom as a whole". I don’t know how a gremlin put that in. It is one for the United Kingdom as a whole.

Q285 Chair: So we should delete "not".

Professor Bogdanor: Yes, please, if you would, and I apologise for that.

Chair: We have all underlined that.

Professor Bogdanor: I apologise for the gremlin, but it is relevant to Mr Roy’s question because some people in Scotland assume that they can acquire whatever degree of devolution they want. Of course it is for Westminster to decide upon its policy in that area.

Q286 Chair: That is right. It is inconceivable, I would have thought, that Westminster will agree to the devolution of corporation tax as part of any package. It is then a question that, if it is a pig in a poke if you vote for devolution-max unspecified, presumably it is also a pig in a poke if you are voting for separation unspecified.

Professor Curtice: Absolutely.

Professor McLean: The two cases are not as different as most of us have been thinking ourselves. Several of us have been writing that Scotland could declare its independence unilaterally, but, as Vernon has just said, it could not declare devo-max unilaterally. What we are all now coming to is an understanding that, as the terms of this potential independence are being redefined week to week and day to day by the Scottish Government-and I do not blame them for that-there will be an element of a pig in a poke even in the event of a yes vote for independence. As discussed in earlier questions, the Scottish people would not know exactly what they would be voting for because negotiations on the nature of the split would not have taken place.

Professor Bogdanor: This is a fundamental point, Chairman, which I would briefly underline. Independence from one point of view is clear. It means that Scotland will no longer send MPs to Westminster. That should be made absolutely clear to the Scottish people. The other aspects that go with it, like shared sovereignty, cannot be a unilateral decision by an independent Scottish Government. They depend on the reaction of Westminster and the rest of the United Kingdom. I do think it is fundamentally important to emphasise that point.

Professor Curtice: One obvious example is the common travel area. Whether or not there would be border controls at Gretna is a decision for both the Scottish Government and the rest of the UK Government. Some of you may remember that the last UK Administration went quite a long way down the path of introducing passport controls between the Republic of Ireland and the United Kingdom. Eventually it was stopped, but in a sense that is a directly analogous case. The Republic of Ireland was a former part of the United Kingdom. We had maintained the common travel area for 80 or 90 years and then we were going to end it. The truth is that, if Scotland becomes independent, there is no guarantee about both sides agreeing either immediately or in the long run. There will have to be some accommodation between them.

Q287 Pamela Nash: On those points about further devolution and using that as an option on the ballot paper, I would like to hear why those of you who have argued for that view think that that should be an option and why it would be necessary to have a referendum on that in any case when we are already devolving further powers from the UK Parliament to the Scottish Parliament at the moment with the Scotland Bill. Professor McLean, you mentioned that SNP has said it is not its role to define what a devo-max option might look like as it is not their policy. In that case, who would define that if it is no party’s policy? Would not this be more of a procedural devolution? It is something that is a bit more organic rather than a be-all and end-all option for a referendum.

Professor McLean: I will go first. I think both parts of the question are highly relevant. I am clear that no proposal for devo-max should be on a ballot paper unless somebody has defined it. If nobody defines it, it should not be on the ballot paper because people would not know what they were voting for. It is also important that, yes, the Scotland Bill is not yet enacted and the Scotland Bill will itself make significant changes if enacted, which most people in Scotland have not yet got their heads around, let alone most people in the rest of the UK.

Despite those two points, which are both germane to your question, the reason I think it would be a good idea for devo-max to be on the ballot paper is because there is at the moment strong evidence that the people want it. On democratic grounds the option that the people seem to want should be put in front of them, if anything is.

Professor Curtice: I will pick up on that. What I argue essentially in my evidence, in classic academic fashion, is that we have to decide what we mean by the word "decisive". There is no doubt that, if you have a single-question referendum on the question of independence or not, that will be decisive on the issue of whether Scotland should remain within the Union. Even as the UK Government’s consultation paper itself says, it has an important qualification: on this issue it would be decisive. That is fine, but if, on the other hand, you regard the purpose of a referendum as being to try to find an answer to the problem with which you are confronted, then arguably what you are looking for is to try and find a solution around which you can generate a consensus.

One of the crucial things about a Condorcet winner, apart from mathematics, is that in a sense it is the consensus around which you can build a majority. As I have already said to you, there is no majority in terms of first preferences, but devolution-max seems to be an idea around which a consensus may be capable of being built so that maybe we will actually stop arguing about Scotland’s constitutional status at all for at least a little while. That is the issue of why.

Why do we need it for more devolution? I will give you a couple of answers. The first, in a sense, is to cite precedent. It seems to me that, given it was felt that in the case of Wales the switch from an Assembly, which only had secondary legislative powers, to one that was going to have unfettered primary legislative powers-albeit it gradually went from A to B-required a referendum. There is a precedent there that says that, if there is a significant change to the devolution settlement, then maybe it ought to go back to the people.

The question is, of course, what constitutes "a significant change"? Professor Gallagher, who was the Secretary of the Calman Commission, is sitting behind you. I have long argued with him that, in fact, the Calman Commission proposals should have been put to a referendum, and politically that was a mistake. I think the Unionist camp would be in a much better place now. As Professor McLean has said, because it has not been put before the people, nobody knows it is happening and therefore there is not any political impetus behind it.

Therefore, at the end of the day, if you regard devolution of tax powers beyond what is being proposed by Calman such that it might include, for example, the devolution of all income tax and corporation tax, and the assignment of VAT levels-just say for purposes of argument-and at the same time you were going to devolve virtually all welfare benefits, I suspect most people in this room might agree that that was such a dramatic difference to the nature of the devolution settlement, given that the current devolution settlement only exists because it had the public endorsement of the people in 1997, that there is a duty upon the political system to refer it back to the public.

Peter Kellner: This goes back to why I think it is a pity we opened this can of worms on referendums years ago. Remember, in a sense you are stuffed by the second question in 1997, which was specifically about 3p tax-varying powers. As John has said, with any very substantial change, implicitly, once you go down the referendum route to settle these matters, you would need to have a referendum. Whether or not independence was on the ballot paper, you would need a referendum to go for devo-max that led to Scotland having more or less complete autonomy over levying taxes and public spending.

There is a broader point. If you are going to have a referendum to decide the future of an issue, a country’s standing or whatever, it seems to me a principal right that you should offer people that number of options for which there is reasonable evidence that they are both distinctive and command substantial support. The reason I say "command substantial support" is because nobody, I think, is suggesting that the option reversing 1997 should be on the ballot paper. Although it is theoretically a distinct option, nobody now is advocating it much.

There is a lot of evidence, including our own YouGov research that you have been handed in the last few hours and in some of the research that John Curtice has cited, which shows there appears to be a substantial body of opinion in Scotland that supports something around the devo-max idea of very substantial fiscal autonomy on top of the current devolution settlement. Therefore, not to offer the Scots that option and to say, "On this occasion you are choosing the status quo or independence and nothing in between", would be an unfair restriction. If you were to say, as the British Prime Minister has done, "Vote to stay in the UK and then we can talk about more devolution", you come back to the problem of the 1997 settlement. It would be constitutionally odd to have a vote for the status quo and then simply have a parliamentary decision to go way beyond the 1997 settlement.

Q288 Chair: I want to clarify one point before I bring in my colleagues. How realistic is it to offer people an option of devo-plus that might, for the sake of argument, include corporation tax being devolved when it is known that this Government here will not concede corporation tax? There might very well be a will in Scotland to have corporation tax conceded, but the Government will not do it. Surely that is just simply a false prospectus and, therefore, the concept of giving people a meaningful choice is not available.

Peter Kellner: That is where the politics of the numbers comes in. It seems to me that, should devo-max, so defined, be the very clear Condorcet winner on a high turnout, then any UK Government that sought to dismiss that out of hand would be in a fairly weak position. If it were the very narrow winner on a low turnout, it might be different.

Professor Bogdanor: Your point, if I may say so, is absolutely fundamental. An option for devo-max should not be put on the ballot paper just as an aspiration. It is something that the British Government are prepared to agree with-that Westminster has already discussed and decided, "This is what we are prepared to offer the Scots." If we are not prepared to offer them devolution of corporation tax, they should know that before coming to vote. They should know precisely what the options are.

The answer to Ms Nash’s question on the purpose of having a referendum on devo-max is basically to legitimise the package if that is what is accepted. For example, if welfare benefits are devolved, people assume that will mean higher welfare benefits, but they could possibly mean lower welfare benefits and some hardship. Then people might complain. You need to legitimise the package that is there in the eyes of the Scottish voter and precisely what they are voting for. The precise package should be put before the voters before the vote takes place and then it should be legitimised through a referendum. That would be my answer to your question.

Professor Curtice: I was going to say the same thing in slightly different words. Your question, in a sense, indicates why it might be in the interests of the UK Government themselves to define or let us know in advance of polling day what form of further devolution they are willing to introduce for Scotland. An ideal situation would be that what went on the ballot paper was something that either the current UK Government or indeed all three principal Unionist parties in Scotland had indicated in advance that they supported and would be willing to implement if they were either to continue to be or were to be the next UK Government. Then we would undoubtedly have a choice of propositions that we know, however Scotland went, could be implemented. The difficulty that would potentially arise is if those who wish to retain the Union are not willing to come up with that specification.

Chair: I am desperate to come back, but I will let Lindsay go first.

Q289 Lindsay Roy: This is marvellous. This is the most animated discussion we have had with an expert witness group. Can I just be devil’s advocate? Professor McLean, you said that there was a groundswell for devo-max. My interpretation of the poll findings is that there is a groundswell for enhanced devolution but we are not clear what it is. Would you agree with that? We do not know categorically that devo-max is the preferred option of those who say they want some form of enhanced devolution.

Professor McLean: Peter can speak to this with more authority than I can. We know that people say they want more. You could say, of course, they have been offered a menu without prices, and more always sounds better than less. A difficulty in going any further is that everybody in this room has thought of the complications of devolving corporation tax or VAT, to take two of the biggest taxes that would be at issue on the tax side, but the Scottish people have not and so there is no point in asking them. The poll results, which I am sure Peter can speak to in a moment, inherently have that limitation.

Professor Curtice: Can I tell you when I realised why something like devolution-max or Home Rule was clearly a potential source of concern? In the work we have done on Scottish Social Attitudes, for two or three years we dropped all this stuff about devolution-max and we simply said to people, "Who do you think should make most of the key decisions for Scotland about various policy areas? No. 1 is education, and about two thirds say Holyrood. No. 2 is health, and again about two thirds say Holyrood. No. 3 is taxes, and still around three fifths say Holyrood. On welfare benefits, again around three fifths say Holyrood. Then we asked on defence and foreign affairs, and it goes down to a third. You can see there where the dividing line is.

This year we have done it differently because you can argue about whether people really know what you mean by "welfare benefits". Let us make it much more concrete. This year we said to people, "Who do you think should make the decision for Scotland about the basic rate of income tax?" Again, around two thirds say Holyrood. "Who should make the decision for Scotland about the old age pension?" Two thirds say Scotland. However we ask it, what we have discovered is that in this area of taxation and welfare benefits, which are the two principal reserved areas of domestic policy, at least the instinctive reaction of the Scottish public is that the legitimate locus of decision making is not here; it is in Edinburgh. In other words, even without asking people, "Do you want more powers?" and all words that are potentially leading them, if you simply ask people who should be responsible for certain decisions, then you see where the devo-max idea is coming from.

Q290 Lindsay Roy: What kind of sample was that?

Professor Curtice: That is Scottish Social Attitudes. These are probability samples of 1,500 people every year.

Q291 Jim McGovern: It is all part of your opening remarks about loaded questions. If you say to people, "Who should do this for Scotland?", there is a good chance they are going to say Scotland.

Professor Curtice: But they don’t when it comes to defence and foreign affairs, Jim. This is the point. There is a clear dividing line between home and foreign affairs.

Peter Kellner: Very briefly, when you go beyond the issues of taxes and benefits, which John has talked about, and look at the monarchy, the armed forces, the currency, relations with the United Nations and European Union or whatever, there is very little appetite for independence. There does seem to be quite a clear dividing line between the things that are normally regarded as the attributes of a wholly independent nation and the things that would be in any realistic devo-max package. That is presumably one reason why the First Minister says, "I want independence, but I want to keep the Queen and I want to keep the currency." I am not sure what the difference is in practice between his version of independence and devo-max.

What the evidence shows, and it is hard to dismiss, is that there is a break point between adding extra powers around the area of taxes and benefits, which Holyrood does not have, and all the other conventional attributes of independence, which the Scots, by reasonably consistent majorities, on the whole do not want.

Q292 Iain McKenzie: I want to challenge the statistics that Professor Curtice has just remarked upon: the two thirds majority for various powers in Holyrood. I am looking at the YouGov results of the poll here. Clearly, when we split it down to the three parts-the status quo, devo-max and separation-separation ends up a poor third, but there is absolutely nothing between the status quo and devo-max.

Professor Curtice: Iain, this is the point we have been trying to make to you. I have said on more than one occasion that there is no single option that commands the first preference majority support of the Scottish public. The three things we have been talking about-status quo, devolution-max and independence-are all roughly equally popular.

Q293 Iain McKenzie: But they have all expressed a clear groundswell for devo-max.

Professor Curtice: The crucial point is that those people who are in favour of independence regard devolution-max as their second preference. I quote the figures in my paper. In other words, virtually everybody who thinks that Scotland should have control for defence and foreign affairs also thinks that Scotland should have control for taxes and welfare benefits. Peter, I think that something like 92% of your people who were in favour of independence say they would have devo-max as their second choice. This is where I come back to the point of a referendum. You are absolutely right. I take your point that there has been too much loose talk in saying there is a great big groundswell for devo-max and that it is clearly the most popular option. That is not my argument. My argument-and I think it is also Professor McLean’s argument-is that it is the Condorcet winner. It looks as though it is the ground around which you can generate a consensus and, therefore, you might be able to put the issue of Scotland’s constitutional future to rest, whereas, if you hold a referendum on independence, the odds are that, yes, indeed, independence will be defeated but then we will go on to another debate. Both Labour and the Conservatives are promising us another continuing debate about Scotland’s constitutional future if we have a single referendum.

Q294 Iain McKenzie: Carrying on from what you were saying there, if we look at the initial question by the SNP, there is a clear no to that question, but, in regard to those who did agree on adding in the devo-max, there are only six points that transfer from that to support devo-max.

Peter Kellner: Theoretically, the way one does a Condorcet is by doing a series of two things. From our poll, and you can read my notes on this, you can work that out from looking at the first and second choices. When you look at how people vote given the choice between the status quo and independence, it is 62-38% for the status quo. I am leaving out the don’t knows. This is only those who express a view. If you do devolution-max versus the status quo, that is 63-37% for devo-max. If you pitch devo-max against independence, that is 72- 28% for devo-max. That is the straight Condorcet calculation from our poll.

A poll is only a poll. There may be error. People’s views may change. As of now, it is clear to me beyond any question of sampling error that devo-max is easily the Condorcet winner as expressed now before the debate has got going.

Professor Curtice: It is clear from every single poll that has been conducted that has asked about both devolution-max and independence that it is the Condorcet winner. To be honest with you, it is only because those people who are in favour of independence are also willing to back devolution-max as their second preference. That is how the consensus is generated.

Q295 David Mowat: It is partly that, but it is not defined at all to that extent. It is a bit of a false question because there are no downsides associated with it.

Peter Kellner: It could be like the SDP 30 years ago that went ahead for a couple of months in the polls. It went ahead in the polls, looking back, because everybody projected their own idea of an ideal party on the SDP. When they got to know more about it, its support withered. The same thing may happen with devo-max. That is why I say this is only a poll and it is only now. The evidence is clear enough, but to simply say now, "We are not even going to put it on the ballot paper; we are going to throw it out of the window and not consider it" is rather high-handed.

Professor Curtice: If you put it on the ballot paper and it is useless, it will lose.

Q296 David Mowat: Can I make a substantive point to those of you who say it should be on the ballot paper? I understand the logic of that because it does make sense, but it comes back to the purpose of this referendum being a negotiation. It seems to me that, if you vote for devo-max, you are saying, "You have authority to negotiate devo-max." If you vote for independence, you have authority to vote with a different end point. It is then rational. It does not matter too much that devo-max is not properly defined for the referendum either because you will go as far as you can. If you were to have the referendum in that way, both of them empowering the Scottish Government to enter negotiations, albeit with a different end point, it is all quite rational, is it not?

Professor Bogdanor: I prefer devo-max to be precisely defined because, in one sense, independence is precisely defined. It means that Scottish MPs will no longer come to Westminster. It is not just a question of having greater power over this and that.

Q297 David Mowat: It is about the only bit of it that is defined actually.

Professor Bogdanor: I accept what you say about independence otherwise. The terms are very important, but it seems to me that, if you are asking the Scots, as the Unionist parties are, to reject independence in favour of some other alternative, that alternative should be clearly specified and not preserved as a kind of mystery box at the end.

Q298 Chair: In those circumstances then, independence also has to be clearly defined and cannot be left to be a subject for negotiation. It just seems that there is a logical inconsistency to say, on the one hand, you have to have the new devolution settlement, as it were-the alternative to independence-clearly specified, but independence itself will be subject to some process of haggling.

Professor Bogdanor: Independence is specified to the extent that it means that Scottish MPs will no longer come to Westminster.

Q299 Chair: Surely there is more to it than that, to be fair.

Professor Bogdanor: Scotland will be represented by a High Commissioner in London and not by MPs. The terms on which that will occur-economic questions and so on-are, it is true, for negotiation. That is a case for a further referendum once those terms have been negotiated. I think devo-max can be easily specified. It is a Unionist proposal and the Unionist party should specify it if asking the Scots to reject separation.

Professor Curtice: Clearly all reasonable democratic practice would suggest that what will be incumbent upon the Scottish Government is for it to define its negotiating position- i.e. it should lay out what kind of independence it would like to achieve in the negotiations so that people at least know what talks they are being invited into and what it is that you are trying to achieve. Then we come back to the earlier discussion. All of us here have accepted that there may well be a perfectly reasonable case to have a second referendum. At the moment nobody is arguing for it.

Q300 Chair: Presumably we want more. We want the Bank of England to support our banks in Scotland and we want Trident out tomorrow. If you agree to that and then the UK Government says, "No, no", people are then left high and dry.

Professor Bogdanor: Chairman-

Chair: You have got the loudest voice.

Professor Bogdanor: I am sorry, Chairman. In relation to what Professor Curtice has said, the Westminster Government before the referendum might equally give some illustration of what their negotiating position would be. The Scottish Government would say what their negotiating position would be. Then at least one would have some idea of the parameters of the negotiation. No one would know what the outcomes were, although I think there is a case for a further referendum after the negotiations are concluded.

Q301 Chair: Could I take Iain and then Peter?

Professor McLean: I may have the quietest voice here, but I think some of what my colleagues are saying is a wee bit unrealistic.

Chair: That is why I took you second.

Professor McLean: You can either do all the negotiations ahead of time, which is why I mentioned Ireland in 1921, with the downside risk that some of the people will not accept it, or you do none of the negotiations ahead of time. Of course the parties will set out their bargaining position, but you can never know if it is a true bargaining position. You could never know what either party to this negotiation would regard as their red line ahead of the referendum. If doing it all ahead of time is not realistic-none of us has proposed that it is realistic and I have not heard that as a realistic option-then, inevitably, we are drawn towards the idea that we are probably looking at two referendums anyhow. The bargaining, along the lines that you have just said, Chairman, and along the lines of our earlier discussion about corporation tax, would be after the referendum.

Q302 Chair: Is that a consensus view about two referenda?

Professor Curtice: I would certainly sign up to the principle of two referendums. I have done so in public beforehand.

Q303 Chair: Would the others agree with that?

Peter Kellner: Yes. May I say, Chairman, it is "referendums"? "Referendum" in Latin is a gerund and not a noun.

Chair: I am sorry; I forgot that.

Peter Kellner: The one thing, being dictatorial, is that the plural of referendum is referendums.

Professor McLean: Unfortunately I am in a minority that disagrees with Peter.

Chair: Dead French people and Latin grammar.

Peter Kellner: May I make one other point? I think Iain is being unrealistic. The one thing that none of us have discussed is the dynamics of a campaign and the idea that you try to leave negotiations until afterwards. During the campaign you will be answering and possibly asking each other all these questions. If it becomes clear that any particular option is a pig in a poke, then voters are going to react against any pigs in pokes. Whatever one sets out in theory, designing a referendum campaign would, I imagine and hope, produce a degree of clarity.

Q304 Pamela Nash: We have only got up to number 4 in our suggested questions of 17. I just want to bring this section to a close. You have each given me lots of ideas on what you think about a three-option question or multi-option. I want some clarity from each of you. Do you think it is possible to have three options on a ballot paper, for the record? If you do think it is possible, what would be your perfect design for a fair and decisive question? I know it is a bit controversial.

Peter Kellner: Yes. I think people should be asked to give their first and second choice, but the counting should be a Condorcet count not an alternative votes count. Do you want me to expand on that?

Q305 Chair: A Condorcet count would be three questions.

Peter Kellner: No. You would have one question, "Here are three options. Put 1 against your first choice and 2 against your second choice, or X in the first column."

Q306 Chair: That is the equivalent of the alternative vote.

Peter Kellner: It would look like an alternative vote ballot paper, but it would be counted in a Condorcet way rather than to chuck out the least popular.

Q307 Chair: To clarify then, you are not taking account of the fact that the only time that the British people have been asked to express a view on electoral methods they have firmly rejected the sort of scheme that you are proposing. Do you ignore that?

Peter Kellner: This is such a different kind of situation. The short answer to your question is, yes, I would ignore it. This is different.

Q308 Chair: I just want to be clear.

Professor Curtice: The logic of your position, Chairman, is-

Q309 Chair: Sorry, I have not said what my position is. I am just seeking clarification.

Professor Curtice: The point is, as I have said earlier, that we seem to make a distinction between elections not necessarily requiring a 50% vote and referendums where most people do. That is why the case for preferential voting is different in a referendum than it is in an election.

To come back to your question, the answer is that, yes, I think you can have a multi-option referendum. Then the question is how you do it. I would certainly accept that the Condorcet-style referendum that both Peter and Iain suggest is a perfectly acceptable solution. However, I also float the alternative in my paper, which I think may be politically more acceptable. That is the idea, first of all, of asking people whether or not they want Scotland to be an independent country. Then, secondly, if they want to remain in the Union, do they want devolution-max or not? In practice, that should identify the Condorcet winner. If indeed devo-max is the Condorcet winner, it should get 50% support whatever happens. It gives both the SNP and the UK Government what they say they want, which is a straight question on independence and a decisive vote on that but at the same time also leaves open the possibility that we might be able to find something that generates a consensus and therefore we get a referendum that is decisive in both senses.

Professor Bogdanor: Chairman, your example of the alternative vote referendum illustrates a good reason why a multi-option referendum is an advantage. The survey evidence indicated that most of those people who favoured a change from the first-past-the-post system actually favoured proportional representation and not the alternative vote. That option was not on the ballot paper because the coalition party decided not to put it there, by contrast with New Zealand. For that reason, perhaps, the turnout was very low at just 42%. Those who favoured electoral change felt a slight dissatisfaction with the terms of the referendum, which is a pity. I think there is a strong case for a multi-option referendum.

Q310 Chair: I want to be clear. Are you saying that people who are in favour of proportional representation and saw this as imperfect did not turn out?

Professor Bogdanor: No. I am saying that was not the choice. They wanted a wider choice.

Q311 Chair: But they voted anyway, so it does not actually explain the low turnout.

Professor Bogdanor: We do not know whether they voted. The alternative vote did not stimulate as much enthusiasm as a proportional system might have done. It is certainly possible to argue that. I think there is a case for a multi-option referendum. Although I accept the point that a two-stage multi-option referendum with a run-off is not theoretically perfect in the sense that it could be that the third choice would be the so-called Condorcet winner, nevertheless there is an advantage to having a run-off referendum a week or two weeks afterwards to give the Scottish people further time to reflect on the options available. We are, after all, talking about very fundamental and important choices, which are probably irreversible. People should take them with great thought and care. I think that would help them do so.

There is one argument against the multi-option referendum, which I think should be immediately dismissed. That is that it would be too complex for people to understand. That is a highly patronising view. It was shown in New Zealand that voters can perfectly well understand those options. The Scottish people are perfectly prepared to choose between the various options open to them and will discover what they need to discover about those options before they vote.

Professor McLean: Sticking closely to Pamela Nash’s question in the interests of time, my answers are yes and yes. I give the same answer therefore as Peter gave. I would add only two things. First, as per my written referendum, the parliamentary draftsmen need to deal with the no clear outcome problem, but I do not think we as citizens need to be unduly bothered about it. It is just that the legislation has to be clear and correct. Secondly, in relation to the Chairman’s point as to whether this would not be the system that we have just thrown out in the last referendum, the answer is the one that Peter also gave. Although the procedure for the voter is the same, the procedure for the counter is totally different, and so that would not be a valid objection.

Peter Kellner: I would point out that none of us has supported the First Minister’s particular proposal. We agree with the First Minister in saying yes to the first question, but we do not think his answer to the second question-

Q312 Pamela Nash: Would you say that on the record?

Professor Curtice: The truth is it is a dead horse. It is not in the Scottish Government’s most recent White Paper. There was an implicit retreat from that proposal in the paper that was published on 25 January.

Q313 Chair: I want to be clear on one thing. Are you agreeing that, if there are three options available, both the method of asking the questions and the method of counting could affect the result?

Professor Curtice: Yes, absolutely; of course.

Peter Kellner: Not only could but almost certainly will.

Q314 Chair: Let me be absolutely clear and make sure that I am phrasing this properly. If we have three options available, you are saying to me that the way in which the questions are asked and posed against each other and counted could actually affect the result that comes out.

Peter Kellner: That is the burden of my paper, to make precisely that point.

Professor Curtice: Absolutely.

Peter Kellner: This is not simply a technical issue. This is why the politics of the next six months seem to me to be potentially as decisive or more decisive for the future of Scotland than the vote that is cast in a referendum in two years.

Professor Curtice: The point is that you therefore have to be clear about what criteria you think the multi-option referendum ought to meet in order to determine what the winner is. In my paper I essentially put two. One is that you need to get 50% express support, either through first preference or a combination of first and second preferences. Secondly, ideally, you want something that is either guaranteed or is pretty likely to get the Condorcet winner. I give you the arguments for doing that, but you have to be absolutely clear as to what it is you want. All of us would agree that holding a multi-option referendum and a single referendum, in which all you had was a plurality vote, would not be acceptable. That is the worst possible option that you could devise. Vernon is willing to accept the alternative vote, and I understand that argument. Peter and Iain would probably ideally like a pure Condorcet system. I am saying that is fine, but maybe you can get there by a slightly different route. We are all saying that you have to do something that is not just simply putting a single X on a ballot paper.

Q315 Chair: Pamela wants to come back in, but I want to raise a point that maybe we will come to later on. Given that you all agreed that any question that begins, "Do you agree?" is a loaded question, anybody that is prepared to do that should not be trusted to run a referendum, when the way in which you ask the questions and count the votes can affect the result. In those circumstances who does do it?

Professor Curtice: I will leave the loaded nature of the question because, in truth, we can argue about how loaded the question is. As you will be aware, Chairman, under PPERA the Government propose the referendum wording. The Electoral Commission tests the referendum wording and comes back with recommendations. Under PPERA, the Government are not obliged to accept those recommendations, although I think in practice so far they already have done so.

At the moment, although their paper does not say that and their proposed draft Referendum Bill does not contain that provision, the First Minister said on 25 January that he would expect to follow that procedure. Probably all of us would say that we regard the Electoral Commission as having a crucial role here in ensuring that we come up with a referendum wording that is regarded as both clear and unbiased. Here, the crucial issue-and it is one of the things the Committee may want to think about-is ensuring that the Electoral Commission is given both sufficient time and resources to investigate that issue properly.

There have been problems in the past. For example, the Electoral Commission failed to spot the problem with the single ballot paper in the 2007 Scottish Parliament election. That at least in part was an issue of time and resources. In truth, rather than arguing about whether this question is or is not fair, the crucial issue is, first, for everybody to agree that what the Electoral Commission comes up with should be what is on the ballot paper, and, secondly, the Electoral Commission should be adequately resourced for that purpose.

Q316 Chair: From the nods, I understand that everybody else agrees with that. I want to be clear about whether or not the Scottish Government or the UK Government would be initiating the question, which the Electoral Commission could then only, as it were, tinker with. Would the Electoral Commission initiate the question, or, if it does not have the power to initiate, would it be able to virtually initiate it by turning the Government’s question completely on its head and coming out with something totally different?

Professor Curtice: I will try and answer you, remembering the precedents. My reading of the two Governments’ White Papers-though I am not sure the UK Government’s White Paper is quite clear on this-is that there is a presumption in the UK Government’s White Paper that, if indeed a section 30 order were to be made under the Scotland Act, that would probably give the Scottish Government the right to initiate the question. It is implicit rather than explicit in the paper. The Scottish Government clearly expect to have the right to propose the question. I have forgotten the detail now, but certainly the AV referendum question that was proposed by the UK Government was very heavily rewritten by the Electoral Commission. Certainly, whatever is initially proposed, we need to ensure that the Electoral Commission has the right not just simply to test a single proposition but indeed is able to test what it regards as reasonable alternatives.

Peter Kellner: I agree absolutely with John. As I said earlier, I do not think in the end, within reason, it makes a huge amount of difference what the precise wording is in a referendum. What I think is crucial is that the process is seen to be fair. The reason for giving the Electoral Commission the resources and time, as John suggests, is not because the wording will be perfect, though it will be fine, but because everybody can see that this referendum is being conducted in a fair way. If the wording is fair and the counting system is seen to be fair, then whatever results from it will have greater legitimacy than if people think that the process has been rigged. It is the transparency of the process that is in a sense more important than the precise words that you get at the end of it.

Professor McLean: I do not know if this relates to the note that your adviser has just passed to you, but I have the UK Government White Paper here, and it looks to me as if the UK Government are pretty well willing to concede to the Scottish Government that the section 30 order would have the reporting procedure that the Electoral Commission reports to the Scottish Government. That seems to me to imply that the Scottish Government would ask the question but the Electoral Commission would then have the right to propose modifications.

Q317 Chair: It is at that point when you paused, as it were, about the rights of the Electoral Commission. I was not quite clear on that point. In your comment, Professor Curtice, you mentioned in one case "heavily rewrite" and then "reasonable alternatives". "Reasonable alternatives" implies that the Electoral Commission could say, "No, that is not the way to do it; this is the way to do it."

Professor Curtice: No, I do not think it does.

Q318 Chair: "Heavily rewrite" implies that you are working from a framework that you have been given. I want to be absolutely clear for the evidence what it is that you are recommending.

Professor Curtice: It is fine for some Government or other to get the ball rolling by proposing a question. I am then suggesting that the Electoral Commission should have the right both to test what the Government propose and also alternatives. I have forgotten the detail, but my memory is that the original question in the first version of the Parliamentary Voting System and Constituencies Bill is very different from the question that was eventually agreed upon. I think you will find that on each and every occasion since the Electoral Commission has had a role in the wording of referendums it has changed the Government’s proposed wording. For example, there is currently a debate going on between the UK Government and the Electoral Commission on the council tax reforms.

Q319 Chair: I understand about changing the wording and we have discussed a whole number of different methods. But if we accept for this debate that the Scottish Government are going to be initiating the question, if they come back with a set of questions, is the Electoral Commission restricted to looking at the wording of those questions within the framework that the Scottish Government have chosen, or are they able to say, "This system, supported by this dead Frenchman, is the one that should be applied rather than the alternative that you are suggesting", or do they have to accept the method that the Scottish Government have proposed?

Professor Curtice: There are two separate issues here. The issue in a multi-option referendum of how voters vote and how those votes are counted would not at the moment be a decision in which the Electoral Commission had a status under PPERA. PPERA basically does not envisage the issue of multi-option referendums. The status of the Electoral Commission is with respect to wordings. If you want to get exact chapter and verse about how much freedom the Electoral Commission has and how much is exercised, then get the Electoral Commission in. I am operating from memory of having seen these things go by and certainly the wording has changed quite substantially.

Professor McLean: Very quickly, it is not for us to say how this Committee should report, but I would hope that this Committee would engage with footnotes 10 and 12 in the UK Government consultation paper. They are very helpful as far as they go, but they do not go quite as far as we might all want in answering the set of questions that you and your colleagues have posed.

Q320 Chair: Footnotes 10 and 12 are not at the forefront of my mind at the moment.

Professor McLean: They are the two footnotes in which the UK Government appear to concede the leading role to the Scottish Government in drafting the question.

Q321 Chair: I understand that. The point that I wanted to pursue is this. The PPERA legislation, as I understand it, did not envisage the possibility of multi-option referendums. Given that we are into uncharted territory, I want to be clear, if I can, on what your evidence is on what view we ought to recommend. It seems to me that there is a certain logic in saying that, because this is new ground, the Committee should recommend and the British Government should say as part of a section 30 order, or whatever mechanism is appropriate, that the Electoral Commission’s remit should be extended to comment also on the question of which method is used and which questions are within that. That is the logic of your position, but we want to flush it out.

Peter Kellner: I do not know if it is the view of the other three, but my personal view is that a decision on whether it should be two options or three options is a political decision- London, Holyrood, whatever. The Electoral Commission personally should certainly have a role on the wording. If it is decided to have a three-option referendum, my own personal view is that the Electoral Commission should have locus in recommending how the ballot paper should look and how the counting should be done. That would be my personal dividing line between what is a political decision and what the Electoral Commission should do.

Q322 Chair: A locus in recommending is not quite the same thing as saying that they should determine.

Professor Curtice: No, but that is the position at the moment under PPERA. Some of us would argue that PPERA should be strengthened and that both the UK and Scottish Governments in future referendums for which they are responsible should be obliged to take the recommendations to the Electoral Commission, but that would be going further than the current UK position.

Peter Kellner: My ideal would be that the Electoral Commission would not decide whether it is two options or three options. If it is three options, I would like to see the Electoral Commission deciding exactly how that should be asked and how it should be counted.

Professor Bogdanor: I agree with that.

Q323 Chair: Do you agree with that as well?

Professor Curtice: I am happy with that too, yes.

Professor McLean: Yes, and because the UK Government, both sides concede here, have the power to issue a section 30 order, it seems to me that that section 30 order could contain what Peter has just suggested that it should and what you have suggested.

Chair: We generally love it when all the witnesses agree because it means we can either reject you all or blame it on you if we accept your evidence.

Lindsay Roy: And we can move on.

Chair: And we can move on; that is right.

Q324 Mr Reid: There was discussion earlier about whether it is one question or two. It seems fairly obvious that the Scottish Government believe that there should be one question along the lines of, "Do you support independence?" If that question was carried, what happens the next day? What situation are we in the next day if a question like that gets carried?

Professor Bogdanor: Presumably negotiations begin between the two Governments as to the terms of independence.

Q325 Mr Reid: What if the UK Government were to say, "You are independent; off you go. We have no interest in negotiating"?

Professor Bogdanor: With respect, that could not happen. You would have to say, what happens, for example, to the oil and gas revenues? What happens to UK defence installations in Scotland? What happens to Scotland’s share of the national debt and so on? Some decision has to be made about those matters.

Q326 Mr Reid: Are there international conventions or is there an international court that the Scottish Government could go to if they were not happy with the negotiations?

Professor Bogdanor: There is international law that is relevant to some of these questions, but the British Government could not, and I am sure would not, simply refuse to talk to the Scottish Government after a decision of that kind. I think that the British Government would take the view, and it has an interest in taking the view, that the process should be as smooth as possible and be conducted in as friendly and amicable an atmosphere as possible. After all, many Scottish people live in England and many English people live in Scotland. There is an interest in making the separation amicable. Perhaps the separation between the Czech Republic and Slovakia provides a good example. It was called "a velvet divorce". It was conducted very amicably, but there were, nevertheless, a large number of treaties and agreements between the two parts of what had once been Czechoslovakia.

Q327 Mr Reid: How long did that process take?

Professor Bogdanor: It took some considerable time.

Professor Curtice: The answer, surely, is that in that situation it is going to be in the interests of the UK Government to negotiate; otherwise it is simply inviting the Scottish Government to say, "By the way, Trident is out and the oil is ours, full stop."

Q328 Mr Reid: I agree with that. I was not advocating that course of action. It was a "What if?" question. A negotiation implies that both sides are keen to get the best possible deal. What I am trying to get at is whether there are any international court norms that they would have to follow, or is it simply a case of anything goes? They obviously both want the best deal; so there might be some arm-twisting going on and things like that. Are there any norms they have to follow?

Professor McLean: Here, the case of oil and gas is different from the others. In the case of oil and gas there is international law. If there were negotiations, both parties would know what the international law was and therefore the dividing line out to sea would be agreed quite quickly, whether there was a formal agreement or not. None of us is an international lawyer, but my impression is that on the other three highly difficult issues, such as the splitting of the national debt, defence assets and the currency, there is no international law that would help.

Q329 Mr Reid: How do they negotiate then? If the UK Government say, "We will split up the national debt on the basis of population", and the Scottish Government say, "No, it should be on the basis of wealth", what happens?

Professor McLean: As has already been mentioned, the Czech/Slovak analogy is the closest. At a conference that some of us are organising in Edinburgh in a couple of months, we are aiming to have spokesmen from the Czech Republic and Slovakia who were involved in that process to describe exactly how it happened.

Q330 Mr Reid: Is it a very unclear situation that we would be in? Is that a fair comment?

Professor McLean: It is not that unclear, but we are the wrong panel to advise on that.

Professor Curtice: The answer is that at the end of the day it will depend on goodwill, absolutely. At the moment, my understanding of the position of the UK Government and of the Labour party is that they accept that, if indeed Scotland were to vote in favour of independence, then they have the right to take that decision and therefore they have the right to enter into negotiations. Obviously you can argue about that. The brutal truth at the end of the day is that both sides have certain weapons they will be threatening to draw into the negotiations, in the expectation that they would not have to use them. Both sides at the end of the day would have a variety of incentives to come to some kind of agreement.

Peter Kellner: May I slightly lower the tone from that of my friends? Again, in the dynamics of a referendum, things that are unclear now will become clear because people will be forced to look at them. It will be like a Rolf Harris painting. Can you see what it is yet? By the end of a referendum things that are unclear now will have clear answers. You may or may not like them, but they will reveal themselves.

Q331 Chair: The worry in that is that, if all this depends on goodwill, given that at the moment the SNP are refusing even to let us into the Scottish Parliament to have meetings, we are not entirely confident that goodwill will break out all around.

I want to follow up Vernon’s point about the velvet divorce. The currency union that was agreed broke up within seven weeks. How was something like that dealt with? It is not only a pig in a poke. The poke is opened, but then the pig is dead or the pig then dies. I do not want to pursue that metaphor too far, but things then change. How is that handled in this mechanism?

Professor Bogdanor: Chairman, if I may say so, you have put your finger on a very fundamental difficulty. A currency union would almost certainly involve the rest of the United Kingdom imposing certain conditions such as supervision of the Scottish budget and Scottish public expenditure. We do not know, but it may be that the Scottish Government would accept or reject that proposition. That would be for them to do. It would be for the rest of the United Kingdom to say what the terms of such a currency union would be. Of course the terms I am talking about would put Scotland in a monetary union but not a fiscal union, which is the position of the countries in the eurozone. This is obviously something that the Scottish Government would have to bear in mind.

Q332 David Mowat: It is a much worse position than the countries in the eurozone because the countries in the eurozone are part of the process of the appointment. In this case they would not be.

Professor Curtice: This is exactly one of the issues that in the last eight weeks has emerged, with the kind of scrutiny that Peter was talking about. You have already seen the position of the Scottish Government move. At the conference last Friday in Edinburgh that you spoke at, Vernon, the First Minister indicated that a Scottish Government would have to follow the Maastricht criteria with respect to the size of the current fiscal deficit. The SNP has begun to accept that the lesson of the eurozone crisis is that it will have to agree a fiscal co-ordination between an independent Scotland and the rest of the UK if an independent Scotland continues to use the pound.

Q333 Chair: Presumably, the Czechs and Slovaks went through all this and had all this agreement about what was going to happen, but then it still collapsed. At what point in the process, can you tell us, was this agreement reached? Was that before the referendum or was the currency union and its implications agreed after the referendum? If it was done after the referendum and then the currency union collapsed, people then presumably could not get back.

Professor Bogdanor: I think I am right, Chairman, in saying that there was in fact no referendum in the Czech and Slovak areas. A Government was returned that favoured independence and that was taken to be sufficient. The currency union agreement was a matter of negotiation. As you say, Chairman, it collapsed very rapidly, which of course it could do in Scotland whatever was agreed.

Professor Curtice: There is no guarantee about the future. Remember that the Republic of Ireland had the punt for a long time and it was pegged to the pound. Then they decided to float and now they have joined the euro. Who knows what an independent Scotland will decide to do in 10, 20, 30, 40 or 50 years? That is one sense in which the future of independence is unknown, but, equally, of course, who knows what the Union would bring in 10, 20, 30, 40 or 50 years? These are inherently unknowable questions.

Professor McLean: If it would help, we could probably get you a note on the currency history of the Czech Republic and Slovakia within a couple of weeks.

Chair: People in Govan speak of little else and therefore that would be immensely helpful.

Q334 Mr Reid: What do you think the franchise should be for the referendum?

Professor Bogdanor: In principle, as a general matter, I am in favour of lowering the voting age to 16, but I do not think it should be lowered especially for one election. The franchise should be exactly the same for Westminster and Scottish Parliament elections.

Q335 Mr Reid: You said Westminster and the Scottish Parliament.

Professor Bogdanor: I mean that the voting age should be the same. I beg your pardon; I am talking about the voting age.

Professor McLean: I would support the UK Government’s position on this, which is that the franchise should be the same as for Scottish Parliament elections.

Professor Curtice: I would also support it, not least because in practice-for complicated reasons that I do not want to bore you with-as registration is a reserved matter, it would be impossible in a September or October referendum for anybody aged less than about 16¾ to be able to vote. In practice, getting those aged between 16¾ and 17¾ on the register will require a high degree of initiative on the part of those individuals. Given that we know that, in practice, those aged 16 and 17 are even less interested in politics than those aged 18 or 19, it will probably not be worth the effort. Indeed, for that reason I am personally something of a sceptic about reducing the voting age in any way.

Q336 Mr Reid: The other question to do with the franchise is whether EU citizens resident in Scotland should be allowed to vote, as they would be in a Scottish Parliament election but would not in a UK election. Do you have any views on that?

Professor Curtice: This is partly tied up with your notions of nationality. Clearly, given that the SNP very strongly adhered to the concept of a civic notion of national identity rather than an ethnic notion and that, therefore, from their perspective anybody who is resident in Scotland would certainly be entitled to claim Scottish citizenship, you can see the logic there for allowing EU citizens to be able to vote. From their perspective at least, they would regard them being as Scottish as somebody whose parents, grandparents and great-grandparents were born north of the border.

Q337 Mr Reid: Even if they had only been there a few weeks.

Professor Curtice: Yes, absolutely.

Q338 Iain McKenzie: Even people who vote for Members of this Parliament.

Professor McLean: That is the position suggested by the UK Government themselves in their White Paper.

Q339 Chair: I am not sure that has been particularly well thought through. In terms of the EU legislation, where citizens of a state are allowed to vote for the state’s Parliament, so to speak, the nation’s Parliament, in a situation like this where we are talking about creating a new state or a new nation, surely it should be the same electorate rather than a subsidiary electorate that votes in what are seen to be subsidiary Parliaments.

Professor Curtice: There are a couple of issues here. I am going to get on to dangerous ground here, but, if you believe that Scotland is a nation that has the right to claim political independence, then why should you privilege somebody who has just moved from Newcastle to Glasgow a few weeks before the referendum to be allowed to vote but not somebody who has just moved from Brussels to Glasgow? In other words, if you deny it to EU citizens, you then raise the question why those people who have only been resident in Scotland for two weeks or three weeks or whatever should also be allowed to vote. If they have moved north of the border and managed to get themselves on the register, they will be able to do so. That is the difficult issue.

One of the things we do not know is what decision an independent Scotland would take about its franchise. An independent Scotland could decide to allow European Union citizens to vote in Scottish Parliament elections. If that were indeed the position of the SNP, you can certainly see the logic from their point of view of allowing those citizens also to vote in an independence referendum.

Q340 Mr Reid: But what about the person who has lived in Scotland all of their life and moved to Newcastle a few weeks earlier? Would they have the right to vote?

Professor Curtice: If you believe in a residence base, the answer is no. If you go to a Westminster franchise, you then get into the issue that if I move from Glasgow to Paris I can keep my vote, but if I move from Glasgow to London I cannot. The answer is that this is potentially a pretty substantial can of worms. It potentially raises awkward issues about how you define nationality. The beauty of going for doing what we do for the institution that wants to hold this referendum and its existing franchise is that we do not get into that potentially quite awkward and dangerous territory.

Q341 Iain McKenzie: Do we have any precedents here in Europe for this scenario, or should we soon envisage European citizens meandering through Europe-

Peter Kellner: Surely the precedent is whatever the electorate was in 1997 at the last referendum.

Professor Curtice: It is the European Union. It is the Scottish Parliament local government franchise.

Peter Kellner: That is surely the precedent.

Q342 Iain McKenzie: But it was not for separation.

Peter Kellner: No, but it was a referendum about Scotland’s future.

Q343 Chair: I want to be clear. How could it be the precedent including the European Union? Surely they were not able to vote in the general election and therefore they were not able to vote in a Scottish Parliament election. The Scottish Parliament had not been created at that stage.

Professor Curtice: They could vote in the referendum because the 1997 referendum was done on the local government franchise, which is what the Scottish Parliament is. Effectively, it is a procedure between a local government franchise and a national franchise.

Peter Kellner: My point is not what is right or wrong. Frankly, I don’t care less. All I am saying is that, since these involve a whole series of tricky borderline problems, surely the starting point is what you did last time, unless there is a compelling reason to change it in any particular respect.

Q344 Chair: I think we take a slightly different perspective. Given that I started this by raising the point about the loaded question and what was clearly an attempt to rig the referendum, even in a small way, we then have to look at every question where a choice has been made to see whether or not an attempt has been made to make another incremental change in terms of who would be advantaged by which particular scenario. As I understand it, since the vast majority of European migrants would have come from the former eastern Europe, they have a slightly different view of independence and separation. It is not so much separation because they do not see it as that. They see it as independence from the Soviet yoke and are therefore disproportionately in favour of it. Is that something that we should be taking into account?

Professor Curtice: The truth is, Chairman, that what we do know about European Union citizens is that, first, they are quite likely not to get on the register, and, secondly, if they are, they are quite likely not to vote. The real problem with the European Union citizens is not that they are all flocking to a polling station. The difficulty is that they do not think it is anything to do with them in the first place.

Chair: That is helpful.

Q345 Iain McKenzie: I was just going to give a scenario. In that respect in the future, should it transpire that Spain has a referendum in the Basque region, could we go there and vote in that separation referendum?

Professor Curtice: That would be a decision for the Spanish and Basque Governments.

Q346 Chair: Am I right in thinking that, if the Basques and Catalans wish to vote in the Scottish referendum, they would have to move here and get on the electoral register?

Professor Curtice: Yes, of course.

Q347 Chair: So they could move in substantial numbers or they could get postal addresses here and claim to live here.

Professor Curtice: Sure. Anybody in England who wishes to preserve the Union can go and buy property in Edinburgh, inflate the property market and get themselves on the electoral register, absolutely.

Chair: Yes, right.

Peter Kellner: May I make a slightly tangential point since you raise the Basque issue? As I understand it, should Scotland become independent, it would not automatically be a European Union member. It would have to apply for membership. That would take time. It would need unanimity, and it is not immediately clear that Spain or Cyprus would welcome an independent Scotland as a member of the EU precisely because of the issues in the Basque territory and indeed in Cyprus.

Professor Bogdanor: I suspect that Spain would make it difficult for Scotland. There is no doubt that an independent Scotland would become a member of the EU if it so wished, but Spain would make it difficult and perhaps help to draw out the debate because it would not want to appear to make it easy for any area seeking secession such as Catalonia or the Basque country. That would be a difficulty in the Scottish position.

Q348 David Mowat: That would be an example of something that would have to be carefully negotiated between the first referendum and the second. That implies that negotiations are not just with the United Kingdom Government. There could be other interested parties.

Peter Kellner: To be fair, the First Minister says, "No, these would be two successor states to the United Kingdom and therefore both are automatically eligible for EU membership." The British Government’s position, as I understand it, is that, no, Scotland would not be a successor nation; it would be a separate new nation and must therefore start the process of application from the beginning, which would take 10 years or whatever, even if they were then welcomed unanimously into the EU, which is by no means certain.

Professor Curtice: Peter, as ever, the lawyers do not all agree on this.

Professor Bogdanor: One of the issues that would arise is whether Scotland would inherit Britain’s opt-out from the euro. My understanding is that new member states are legally obligated to join the euro. It may be that Scotland would need to negotiate, if it could do so, a specific opt-out from the euro if that is what it wished to do.

Professor Curtice: Or it decides just to do what Sweden has done, which is just to ignore the requirement to join the euro. The other issue, of course, is the budget rebate. It is whether or not Scotland would inherit its share of the UK Government’s rebate.

Q349 Chair: And presumably Schengen also.

Professor Curtice: Schengen also.

Q350 Chair: We had not thought of yourselves as a panel to comment on matters European, but it might be that we ask you back for that. We are getting to the end of this. Can I ask whether or not there are any answers that you had prepared to questions that we have not asked you? Are there any points you think we have omitted that you feel ought to be drawn to our attention? We have not gone into a lot of the polling evidence unfortunately, Peter. A lot of that can change. That would have been interesting but it would have taken us quite a long time. Is there anything else that you would like to add?

Professor McLean: I have nothing, Chairman.

Professor Curtice: No.

Peter Kellner: No.

Q351 Chair: There are a number of things of interest in the evidence that you have given us and we might want to come back to you on those. If you are agreeable, we will have further correspondence and seek points of clarification. It may be that, since we have had so much fun today, we might want to invite you back again.

Q352 David Mowat: I have one final question. I have enjoyed your evidence very much and it has taken us forward, but there is one thing that you all said that I am a little surprised about. That is the fact that you all committed to the third question because it is the popular option. The only problem I have with that is that it would always be the popular option. If you were to ask any group of people almost anywhere, "Do you want more decisions to be taken locally?", without knowing what the downside would be, they are always likely to say yes to that question. It slightly bothers me that we kick off a constitutional thing, which is supposed to be rigorous and all of the rest of it, on the basis of that. For example, the answer might be different if you say, "Devo-max means there will be 10 MPs in Westminster instead of 57." I am just bothered about that.

Professor Curtice: The challenge to you, David, is to be willing to put it on the ballot paper and argue against it-and argue against it effectively. I would argue that, if you do that, you are then in a strong position politically. If you refuse to put it on the ballot paper, these arguments will never be tested and lots of people will no doubt say, "We was robbed."

Peter Kellner: My own view is that, if there are to be three options, of which I am in favour, I would also favour two referendums-a pre-legislative advisory and a post-legislative binding referendum. Here is my prediction. My prediction is that devo-max will be the popular choice first time round, as you indicate. If negotiations are done and people see and discuss the detail, and there is a second binding referendum to leave things as they are or devo-max, it is by no means clear to me and I am by no means certain that in the second referendum they would then vote for devo-max. If they do, it will have won twice: first, as a sentimental middle position, but the second time round, after all the discussion, the negotiation and the headaches, after the pig has been pulled out of the poke and prodded, it is by no means clear to me that people will still want it.

Q353 David Mowat: In the two-referendum scenario, frankly an initial vote for devo-max is meaningless and certain. Why wouldn’t you give your people permission to go and have a chat to the British Government about getting a few powers and then come back and look at it later when you have seen what you can get? That is the issue.

Professor Bogdanor: Mr Mowat has raised an important question. Of course all people say, when asked by surveys, that they favour more decisions taken locally; but then they also complain about the postcode lottery and they ask their MPs why the Minister cannot do something about that even when they are matters in the hands of local government. Both the advantages and the disadvantages of devo-max have to be spelt out. It is not a one-way option. There are disadvantages to having more decisions taken on the spot than at Westminster. It is a careful balance.

You asked, Chairman, whether we had anything else to say. I would like to take up your earlier remark about what your constituents of Govan are thinking about. As you say, it is not the Czech/Slovak conditions of separation. I am sure they are worried about economic and social problems. Therefore, it perturbs me that this debate, if the First Minister has his way, will go on for two and a half years with enormous uncertainty and, I suspect, the unwillingness of many businesses to invest in Scotland. In my opinion, the sooner this referendum is held to settle the issue the better. The issues are not as complex as some people suggest. There are a limited number of arguments, which the Scottish people could understand very rapidly. The sooner the referendum is held the better and we should get away from the constitutional debate of substantive economic and social problems, both of Scotland and the rest of the country, which need to be resolved.

I reiterate my two principles of paragraph 2. The purpose of the referendum is to enable the people to express their views. It is not held in the interests of the Government of Scotland or the Government of the United Kingdom. That is one of the arguments for the multi-option referendum. The players, whether the British Government or the Scottish Government, should not also be the referee. The referee should be as far as possible an impartial body like the Electoral Commission. I would like to reiterate those principles.

Professor Curtice: I am afraid you have now just introduced a point of disagreement, Vernon. I will simply say again on the issue of timing that you have to ask yourself why the UK Government, which were not originally in favour of holding a referendum on independence, should insist on the referendum being held on timing. It contradicts, I agree, with not what was in the SNP manifesto but what was clearly said during the course of the campaign-i.e. that it would take place at some point between 2014 and 2016. You may want to say that was a mistaken promise and it should not have been made, but the truth is that it has been made. You have to have some very strong arguments before you say that we, who were not in favour of this referendum, now insist that you should break your promise as to when that referendum should be held.

Peter Kellner: When Vernon says that the Scots will be required to discuss nothing else but the referendum for the next two and a half years, I think that is a very male point of view. I am sure Fiona and Pamela would agree that people are capable of thinking about two things at the same time. I do not see why a two-and-a-half-year referendum campaign should not co-exist with economic and social debate and decisions.

Professor Bogdanor: It will dominate the discussion for two and a half years.

Professor Curtice: In Govan, Vernon, it is Glasgow Rangers that people are talking about. It is not the referendum.

Chair: I was about to say that.

Professor McLean: The fate of Rangers is much more important than the fate of Scotland.

Q354 Chair: The question of a referendum on the future of Rangers would undoubtedly divide my constituents quite substantially. There would be multiple options there. I particularly want to pick up this point about the timing. We have increasingly been getting businesses speaking publicly and approaching us saying that uncertainty is damaging. I have the shipyard in my constituency. I know that BAE Systems, though they will not admit it, are discussing the future of orders and the future of the yards. That sort of postponement and dragging it on is damaging to confidence.

Surely in those circumstances, even though the British Government said they did not want to have a referendum at all, that does not mean to say they cannot say, "Look, now that we are in that position, we have to have it soon." I think you are right to identify that the SNP did not say anything about the timing until well into the election, but by that time it was already clear that they were going to win. All the polls were indicating that they were going to win and, therefore, making a statement like that is a one-way bet, in a sense. It was then tying in everybody else to accept that mandate. Surely that is not something that we, who actually have a bigger mandate from the Scottish people than they do, would necessarily want to be bound by.

Professor Curtice: As I said, it is not the sole thing to think about. Politically, if I can put it like this, you have to think about how strong a position you are in to pursue that argument. It seems to me that you are perfectly at liberty to argue and to point out to the Scottish Government that the delay is proving to be damaging and to use that as a means of trying to exercise influence on the issue. The question is whether at the end of the day, should you not manage to persuade them to change their mind, it would necessarily be wise for you for a variety of reasons to insist that it should take place sooner rather than later. In other words, I would ultimately doubt the political wisdom of insisting as opposed to trying to persuade.

Q355 Chair: But, presumably, the argument in favour of a delay would come back to the point about making things clear. If it was clear that by delaying you were going to get much more clarity about the options that were on offer, then that would be a justification. If you were just going to have the same sort of obscurantism, particularly about the third way-which I never believed the first time round, far less this time round-then it would just be seen to be a sort of manoeuvre to spin things out and particularly to move it on to the anniversary of Bannockburn, which is basically a dog whistle reminder to their own supporters that we beat the English.

Professor Curtice: The other thing to bear in mind, Chairman, for those of us standing on the sidelines at the moment is that we are fairly clear what arguments the SNP are going to use in a referendum. In a sense, they are probably ready for a relatively early referendum. I am not entirely clear yet that the Unionists have an agreed position as to what arguments they are going to deploy and what it is they are going to put before the Scottish public as to what the consequences of a no vote would be. There are considerations on that front as well.

Q356 Chair: So the Unionists should delay for their own good.

Professor Curtice: That may be an argument, yes.

Peter Kellner: Very briefly, if it were the case that economic conditions deteriorated, that people would not invest and so on because of a long-term fear of independence, then I think what would happen is that he polls would turn against independence. It is almost a self-correcting problem. If what you postulate happens, it will be so damaging to the independence cause that people will pull back and the problem will be solved.

Professor Bogdanor: If this is right and the delay would cost people jobs because businesses were not investing, I suspect the majority of Scots would want a referendum sooner rather than later, whatever comments the SNP made just before the election. I am sure that people in your constituency and elsewhere in Scotland are very concerned about their jobs. If the lack of investment because of uncertainty-which was something that happened in Quebec before the referendums in the 1990s-was to manifest itself, I think most Scots would then say, "The sooner we can get the referendum over with the better."

Professor Curtice: But then the opinion polls would reflect that. The opinion polls at the moment are evenly divided as to whether it should be 2013 or 2014. There is no sign from the electorate. There is no clear consensus on it.

Chair: Iain, you have been cut across there. You have been cut across several times.

Professor McLean: I am confident that the biggest issue for business is currency. The business that that most obviously affects is the financial sector, which is still huge in Scotland. I also agree that that gives an incentive to both sides-the Nationalists and Unionists-to get clarity on what the future currency is. If it goes to the EU, as we have heard in an earlier phase of this discussion, you will have a new level of uncertainty. It is actually in the interests of the Scottish Government to be as clear as it possibly can on the currency. It is in the interests of Unionist parties and perhaps the UK Government, if they wish, to challenge that currency. I am happy for that to be argued politically under the pressure, which will certainly be there, from the Scottish financial sector for clarity.

Q357 Iain McKenzie: If the panel seem to be in agreement on the devo-plus question needing to be further clarified, would they not also accept that the separation question needs to be further clarified? If you do, who should do that clarification?

Professor Curtice: The answer to you is that the Scottish Government clearly have an obligation and have made a commitment to publishing a White Paper, which I am sure many people in this room will wish to criticise. There is then an obligation on both sides of the debate to engage in critical scrutiny about what the alleged advantages and disadvantages of independence are. At the end of the day it is up to you guys in this room, along with all of your other political colleagues on both sides of the fence, to conduct an effective debate that informs the Scottish public and exposes the strengths and weaknesses of the case for Scotland becoming a separate country.

Chair: Are there any other final, final points? We thought we were just getting to the end there and then the debate broke out again. If there are no other questions, I thank you very much for coming along. It has been very helpful to us. You are undoubtedly one of the worst behaved set of witnesses we have ever had. They are usually much more self-disciplined. I suppose it is coming from academia that does it. The cut and thrust of academic politics is so vicious, as I understand it, because the issues are so small. We will probably want to come back to you on some of these issues and I hope you will be willing to respond. Thank you very much for coming.

Prepared 13th March 2012