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 The Act was subsequently repealed because the conditions for its implementation had not been met.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.