Saturday, August 30, 2014

What if the 40% rule was applied to this referendum?

A guest post by Ian Stuart Baird

The 1979 referendum on Scottish devolution was famously ‘lost’, despite a small majority voting in favour of the proposal, because it failed to pass the 40% hurdle. George Cunningham, a Labour MP and a Scot, but sitting in an English constituency, proposed an amendment during the passage of the Scotland Act through parliament that 40% of the electorate, rather than a simple majority of those voting, would be required to vote Yes for the Act to be implemented. The amendment was passed, but although 51.6% voted Yes on a 63.8% turnout, this only represented 32.9% of the total electorate at the time of 3,737,362. The Act was subsequently repealed because the conditions for its implementation had not been met.

The referendum on 18 September has no such additional qualifying hurdle and the Yes/No question will be settled on a simple majority. However, because the constitutional implications of a Yes vote are so great, some argue that stricter criteria than a simple majority should apply in such circumstances.

There are two ways of doing this. One is to apply a ‘turnout threshold’ which requires that either a certain percentage of the electorate vote for a proposition for it to succeed (as the 40% rule specified in 1979) or that a minimum turnout is required before a simple majority succeeds. (Prior to the 1997 devolution referendum the House of Lords proposed, but later dropped, a 60% turnout requirement. With an eventual turnout of 60.4% their test would in any case have been passed, just, had it been applied.)

The second potential higher threshold is to specify a super-majority which requires a specified proportion of votes above 50% to succeed as used, for example, in referenda on constitutional matters in some States in the USA where a 60% affirmative vote is needed. ‘Double majorities’,
that is where both turnout and super-majority thresholds are applied.

If the 40% turnout rule was used in 1979 for a relatively mild form of devolution, why is this constitutionally more significant event proceeding without any stricter demands on the voters than a simple majority? First, George Cunningham’s amendment was regarded as an opportunistic and cynical move by an opponent of devolution to scupper the initiative, which it duly did. Since then, turnout thresholds have effectively been discredited. The Lords’ Constitution Committee itself recommended ‘that there should be a general presumption against the use of voter turnout thresholds and super-majorities’, having been persuaded that turnout thresholds enable opponents of a proposal to simply encourage people to stay at home and that the electoral roll is never in any case an accurate representation of those who are able to vote (it includes deceased individuals), and that super-majorities were difficult to justify as long as parliamentary majorities did not have to meet this test.

The Edinburgh Agreement therefore, which was signed on October 2012 by David Cameron and the then Scottish Secretary Michael Moore representing the UK Government, and Alex Salmond and Nicola Sturgeon representing the Scottish Government, includes no additional thresholds for the Yes campaign to surmount, bar the already difficult one of gaining 50% (+1) of the votes cast.

But exactly how much more difficult would it have been if thresholds had been included? It looks as though any voting turnout threshold, such as to match the turnout in the immediately previous general election (a requirement used in some jurisdictions) would have been easily matched if predictions of 75% and upwards are realised. And with high turnouts the difference between voting percentages and electorate percentages decreases. If 50% vote Yes on a 80% turnout, the 40% requirement is matched, and even with a 75% turnout, a 53.3% share of the vote crosses that barrier. Had a super-majority rule been agreed (imposed?), it is unlikely that it would have been in excess of the 55% threshold applied when Montenegro held a vote for independence from Serbia in 2006.

It seems therefore that any Yes vote over 55% would have met any threshold conditions that might have been set. But it is in the grey area of the 50-55% band that the legitimacy of the vote may be challenged. One of the advantages of a threshold, had there been one, is that there is no ambiguity in the result. Indeed, should the Yes vote prevail, depending on the exact percentage and the specific threshold that might have been applied, it may prove a regret that the precision of a threshold has not been applied to avoid subsequent disputes.

You might ask in what way is 50% an ambiguous result given the absence of any threshold criteria? Strictly, a Yes vote of 50.1% should not be treated any differently than a 60% vote in the subsequent negotiations on the detail of independence but the problem with the Edinburgh Agreement is that nowhere does it explicitly state that a 50% + 1 vote is the required hurdle to overcome. Instead, it states that the signatories look forward to a ‘referendum that is legal and fair producing a decisive and respected outcome’.

Apart from the problematic issue of defining a ‘decisive and respected’ outcome, questions about the legality of the Edinburgh Agreement have been raised by constitutional lawyers. One of the best forensic dissections of the Agreement is by Christine Bell, Professor of Constitutional Law at Edinburgh University. Her paper, “The Legal Status of the 'Edinburgh Agreement'”, written shortly after its publication in 2012, is worth re-examining now as we approach the date of the referendum and more focus is on the implications of various potential percentage shares of the vote as well as simply the headline outcome.

Professor Bell’s analysis very broadly concludes that aspects of the Agreement are not legally binding, or are poorly defined and therefore ambiguous, such as paragraph 30 which commits the two Governments to ‘to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom’. But she also notes that while not drafted tightly in legal terms, its status as an Agreement means that ‘as regards reputation, whichever party breaches this agreement will look bad, be seen as unreliable in the future, and will be less likely to have people sign credible agreements with it. These costs of breach are real for the UK Government, which holds itself out as a credible deal-maker on the international plane.’

That opinion is reassuring but a straightforward commitment by David Cameron to honour a 50% + 1 majority without caveat would be even more so.


  1. I've published this post because guest posts are welcome from a range of viewpoints. But just to be clear, I don't agree with much of Ian's analysis - any form of threshold would have been utterly outrageous, and there'll also be no way back for Cameron from the commitment he signed off on in the Electoral Commission booklet, namely that any form of Yes vote will result in Scotland becoming independent. The only conceivable exception to that would be if the margin was so narrow that it resulted in a Winchester '97-style legal challenge.

  2. Oh go on, you know you agree really.

  3. Anon : I'm not sure whether that's an ironic comment, or a particularly subtle form of No trolling!

  4. Sunshine on CrieffAugust 30, 2014 at 4:01 PM

    I'm pretty sure Cameron has stated that even the slenderest of majorities would be enough.

  5. Thanks for an interesting article Ian. I agree with James that any form of threshold would have been outrageous and I am glad none were seriously proposed. I also agree with James that there is no way back from Cameron's commitment - if the answer is yes, the UK Government will not prevent Scotland from becoming independent.

    It does however raise an interesting hypothetical question. The Yes campaign has made a number of bold assertions during the campaign, for example on currency, EU membership, the division of UK assets, public finances and oil production. Some, all or none of these may come to pass, and it is possible (I am not saying likely) that Scotland enters 2016 facing a future in which it is outside the EU (at least for a period of time), transitioning to a new and unproven currency or using sterling without a currency union, having seen financial institutions and other businesses relocate south of the border and with oil and personal tax revenues well below the targets on which public spending targets have been predicated and on which they depend. Or a combination of some of the above.

    (Of course the reverse may be true we may have a currency union, Scotland remaining in the EU, an oil boom etc, but stay with me).

    In that situation, there may be a strong element of buyers' remorse. Clearly the hardcore supporters of independence per se will stay loyal and still want to push it through, but some - possibly many - of those who have been persuaded by the arguments over the last few months will feel differently. A movement could emerge within Scotland to postpone or even to cancel independence. A unionist dominated Holyrood could, reflecting the will of the people, could seek Westminster's agreement to that effect. It would be hard to see Westminster refusing.

    The above hypothetical demonstrates the heart of the problem; it's not clear what exactly Scots are being asked to vote for, except the right to run their own affairs. There are uncertainties in a "no" vote of course, the no campaign having bewilderingly failed to articulate what enhanced powers will be handed to Scotland in the event of a no. And the future is inherently uncertain. But nonetheless it is uncomfortable that people are asked a question to which the only sensible answer can be "that depends".

    Sadly, there is no alternative (and in any event it is too late to do anything about it now). One option would have been to have an enabling referendum, to authorise the Scottish government to negotiate the terms of departure with Westminster, and then to have a final vote once the terms of departure were known. However this might have led to Westminster acting unreasonably in negotiations, to encourage rejection at the final stage (which may have had the opposite result!).

    If it is a "yes" I hope and expect Westminster will abide by the Edinburgh principles. It is ultimately not in rUK's interests to render Scotland weak. But personalities will play an important part...

  6. It would have been impossible to have an enabling referendum. The UK government would just make the terms so bad that no one would vote to leave. There is no way they would have been reasonable or negotiate in good faith.

  7. @Flockers:
    "In that situation, there may be a strong element of buyers' remorse. Clearly the hardcore supporters of independence per se will stay loyal and still want to push it through, but some - possibly many - of those who have been persuaded by the arguments over the last few months will feel differently. A movement could emerge within Scotland to postpone or even to cancel independence. A unionist dominated Holyrood could, reflecting the will of the people, could seek Westminster's agreement to that effect. It would be hard to see Westminster refusing."

    I agree with the gist of this. One of the assertions from Better Together which is never questioned is the idea that "a Yes vote is forever". I've always thought it would be far easier to reverse a Yes vote than a No one. The UK Government is campaigning to keep hold of us now, so if we voted Yes and then changed our minds and asked to rejoin the Union, they're hardly going to say no!

  8. Denise, possibly, but they would have been restrained to a significant degree by their electoral accountability in Scotland. I think in fact Westminster would not have wanted to negotiate on that basis because it would have succeeded in alienating Scots (who would have the SNP telling them that the other parties were being beastly) and the English (who would have UKIP and Tory malcontents saying they have been soft).

    The same challenge awaits in the event of a yes vote, of course. But it's a little less acute.

  9. If the UK government acts tough after a Yes vote, i propise the matter is settled with an egg poaching challenge.
    The one with a half cooked egg loses.

  10. Surprised we haven't had any whispers about new polls in Sunday papers.

    Normally the campaign staffers are tweeting in anticipation.

  11. The time of the evening when the hints start varies considerably. There have certainly been YouGov and Panelbase polls in the field this week, so I would expect both tonight, unless one or both are internal polls not intended for publication.

  12. James - doesn't Yougov normally appear on a Monday?

  13. There's no real normal for them because the client varies.

  14. Might be better if there are two polls, because we don't want to put all our eggs in one basket.

  15. I'd be very surprised if Panelbase doesn't show either a tie or a Yes lead. No inside info - just my instinct...

  16. I'm not necessarily expecting any further progress for Yes in these polls. YouGov had them on an all-time high in the last poll, and although Panelbase only had them on a joint high, that may have been pound-for-pound the best PB poll for Yes given the recent methodological change. So if anything this situation is ripe for a slight reversion to the mean, which doubtless the No campaign would attempt to crow about.

  17. Buyer's remorse? I just heard from someone who has voted No because he believes Scotland will be granted Devo-Max in the event of a No vote, and that the "three main parties" can't possibly be lying about that.

  18. Thanks for comments on my article. I am reassured (I think - gulp) by those who are convinced by UK Gov/Cameron's commitment to honour the outcome if Yes.
    The concept of buyer's remorse is intriguing but I am more concerned about seller's remorse (the feeling you get when the item you sold went so quickly you wished you'd asked for a fiver more). Can you imagine the backlash against Cameron (yes, specifically Cameron because he signed the Edinburgh Agreement) in the event of a Yes vote? And in those circumstances does no-one think that it makes a difference whether the vote is 50% + 1 or 60% when it comes to post-referendum negotiations?

  19. I saw a comment earlier about an Express poll 51% Yes!

    Yes has only to win by 1 vote especially with the blatant lies peddled by the BritNats aided and abetted by the MSM.

    So 50% +1 is all we need to win.

  20. IGNORE any tweets about a poll in the Express. It's an ancient article from years ago that keeps getting dredged up.

  21. Ian, Cameron would run the "statesman" defence - a yes vote justifies the referendum, anyone who argues to the contrary is undemocratic. The danger for him lies on his own party rather than other parties. Labour and the Lib Dems can hardly criticise him, given their support for the referendum and complicity on the poor campaign. But there is no shortage of unionist backbench Tories who dislike Cameron intensely and who will want to use this as an opportunity to damage him. Whether the imminent general election keeps them in check is the question. Similarly there are plenty in the media who, post Leveson, will leap at the chance to try to scalp Cameron. Whether the prospect of prime minister Miliband keeps them on check is the question. Still, there's a way to go before yes wins...

  22. No polls tomorrow, it seems?



  23. Thanks Flockers. Yes, Cameron will really be between a rock and a hard place whatever the result. The baying Euro-sceptics and an imminent Westminster election don't leave much room for being nice to the Scots.
    In the event of a Yes vote, it seems to me that given the way the campaign has evolved, the prospect of a rational post-referendum negotiation has dimininished. When I question whether the result will be accepted, I simply mean that the degree of resentment will be so high that making the arrangements for separation will be more like an acrimonious divorce than an amicable split.

  24. Panelbase Poll was open till Friday 29 August, so could be that all the data was not complete fro today and may appear next Sunday.

  25. Thanks, Teri. The last Panelbase poll closed on a Friday and we had the results by the Saturday evening, so I doubt if that's the explanation.

  26. Exceptional article!

    The threshold argument is an interesting one. Of course, there can be absolutely no argument for ignoring the will of 50%+ of the population, but none of us want the long term future of our countries to be decided on barely 50% of a low turnout.

    Thankfully, everything points to a very high turnout. This goes someway towards legitimising the barest of majorities, but I would still hope that whichever side wins does so with a 55%+ share. Anything between 45% and 55% just feels like a bit of a "don't know" conclusion and suggests that the arguments haven't been properly made or accepted. If no wins by 51% to 49%, we will all be arguing that there should be another vote within ten years (or sooner, if the Tories try to take us out of Europe before then), and a yes win by that same margin wouldn't feel as good as a thumping win.

    None of that is to say that a Yes win by one vote shouldn't be considered legitimate or that there would be any justification for the margin of victory to be a factor in any negotiations, just that such a historic moment feels like it should be more emphatic!

  27. Thanks Simon. I agree about the desirability of a significant winning margin, even if the 50 +1 should be legitimate.
    I note that on an 80% turnout of a 4,300,000 electorate, means either side needs to get 1,720,000 votes. That's very close to the 1,775,000 who voted Yes to the main question on the 1997 devolution referendum. With a smaller electorate and turnout that represented 74% of the vote then but I find the number retrospectively reassuring, even though it was a vote for devolution not independence.