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 The Act was subsequently repealed because the conditions for its implementation had not been met.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

Cammo Through the Looking Glass

Just a quick note to let you know that I have a new article at the International Business Times, about our Tory overlord's latest foray north yesterday. You can read it HERE.

Yes campaign bounce back to all-time high in first post-debate poll from Survation

Survation have won the race to conduct the first poll since Alex Salmond humbled Alistair Darling in Monday night's BBC debate...

Should Scotland be an independent country?

Yes 47% (+4)
No 53% (-4)

With Don't Knows taken into account, the figures are...

Yes 42% (+5)
No 48% (-2)

The dramatic changes in this poll completely wipe out the supposed gains that the No campaign made in the last Survation poll, which caused a flurry of excitement across the anti-independence media, given that it was the first poll to be conducted since Alistair Darling's largely fictional "victory" in the first TV debate.  Yes are now back to the all-time high with Survation of 47% that they first reached in June, and held onto for the next two polls from the firm.  I expect one or two commentators will try to make the case that Salmond's success on Monday ought to have generated at least the same temporary honeymoon effect that No enjoyed after the first debate - in other words Yes shouldn't simply have returned to the status quo ante, but should instead have gone well beyond 47%.  The problem with that claim is that, as you know, I don't think there's the slightest evidence that No ever had a honeymoon after the first debate, even a fleeting one - the most likely explanation for the bounce they secured in that one individual poll is that it was an illusion caused by Survation's ongoing problems with having to upweight certain groups of respondents by an extreme amount.

Just as importantly, those problems may mean that the progress made by Yes in this poll is, in any case, even more significant than a cursory glance would suggest.  On each and every one of the three previous occasions when Yes reached 47% with Survation, there was always something to be found in the datasets that left a big question mark over whether things were really as good as they appeared.  In the first two of those polls, Yes were heavily reliant on an unusually good showing among the tiny sample of under-25s, who had been upweighted by roughly three-fold, thus hugely magnifying the effect of any potential error caused by random sampling variation.  And in the third poll, Yes had a thoroughly implausible lead in the sample from the South of Scotland electoral region, which was upweighted two-fold.  Tonight's poll is the very first time that Yes have hit 47% with Survation without there being any obvious alibi in the datasets for No.  As usual, young people and respondents from the south have been upweighted sharply, but there's nothing out of the ordinary in the results from either of those samples.  Under-25s are in fact the third most No-friendly age group in this poll out of six, while the south is the second most No-friendly region out of eight (after only the Lothians).  So there's a case to be made that the dubious results from previous Survation results are masking the fact that Yes are now at a higher level of support than ever before, and that there has indeed been at least a modest post-debate bounce that has gone beyond simply returning us to the status quo ante.  If so, we'll probably find out for sure at the weekend, because there seem to be Panelbase and YouGov polls in the works.

At an absolute minimum, we're certainly entitled to conclude that Yes are now at a higher level of support than they were during the first half of this year, because Survation consistently had them at either 44% or 45% for several months in the late winter and early spring.

As always, we have to put a health warning on Survation's headline figures, because they have once again failed to join the new orthodoxy of weighting by country of birth.  There's no way of knowing for sure whether they have too many English-born people in their sample, but as that's a problem that has been observed in the results of all of the other three online polling firms, you'd think the balance of probability is that it applies to Survation as well.  If so, the No lead in this poll should probably be a smidgeon lower.

Respondents in the poll were asked who they thought won Monday night's debate - as with the equivalent poll after the first debate, the results are virtually meaningless, because they'll have been tainted by people's exposure to media reporting of the debate, which in turn will have been influenced by the instant poll from ICM.  Once again, the person who the media reported as the winner is given a wider margin of victory in the Survation poll than in the instant poll, which is exactly what you'd expect.  However, one finding that can't be so easily dismissed is that 35% of respondents who are currently undecided say the debate has made them more likely to vote Yes, compared to just 8.5% of undecideds who say that it has made them more likely to vote No.

In the comments section below, Colin has raised an issue that I intended to cover a day or two ago (before I got sidetracked).  The gist of what he said is : "It's good that Yes are making progress, but as people are already voting by post, isn't it a problem that Yes are still behind?"  Well, that depends on our reason for being confident that Yes can win - it might be that we think they're behind but can close the gap, or it might be that we think the polls are understating them slightly and that they're already ahead or level.  Under the latter scenario, the fact that voting is underway obviously poses no problem.

But if Yes really are a few points behind right now?  It's important to keep a sense of perspective - in spite of the huge number of postal vote applications that have been made, we're still only talking about 1 in 6 of the registered electorate.  The turnout will probably be higher among postal vote applicants, which might take the figure up to 1 in 5.  For the sake of argument, let's take a very conservative estimate of where the Yes vote might be at the moment - perhaps 43%.  If the postal votes being cast right now reflect that state of play, then Yes would need the equivalent of 52% support by polling day to overturn that small disadvantage.  It's important to stress, though, that they wouldn't need 52% support in the polls, which from now on will (or at least should) ask people to give either their voting intention or how they have already voted.  So a Yes lead in any poll will still mean what it says - it's just that it'll be a touch harder to achieve the swing necessary to get there, given that a significant minority of votes are already cast in stone, and can't be changed even if some people end up regretting what they've done.

That said, it may well be that postal vote applicants are disproportionately likely to be committed voters, and that people who are undecided or open to persuasion are more likely to be planning to vote on polling day - in which case the impact of postal voting on the Yes campaign's chances of closing the gap will be very limited.

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REQUIRED SWINGS

Swing required for 1 out of 6 pollsters to show Yes ahead or level : 2.0%

Swing required for 2 out of 6 pollsters to show Yes ahead or level : 3.0%

Swing required for 3 out of 6 pollsters to show Yes ahead or level : 4.5%

Swing required for 5 out of 6 pollsters to show Yes ahead or level : 6.5%

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SCOT GOES POP POLL OF POLLS

There have been a spate of very good polls for Yes recently, and it's only really been the one bad poll from Survation a few weeks ago that has been suppressing the Yes vote in the Poll of Polls. With that factor finally removed, it's no surprise to see the No lead slump to a new all-time low. With Don't Knows taken into account, it's fallen to below 10% for only the second time, and at 9.8% is 0.1% lower than the previous record low.

MEAN AVERAGE (excluding Don't Knows) :

Yes 44.4% (+0.8)
No 55.6% (-0.8)

MEAN AVERAGE (not excluding Don't Knows) :

Yes 38.7% (+0.9)
No 48.5% (-0.3)

MEDIAN AVERAGE (excluding Don't Knows) :

Yes 43.7% (+1.1)
No 56.3% (-1.1)

(The Poll of Polls is based on a rolling average of the most recent poll from each of the pollsters that have been active in the referendum campaign since September 2013, and that adhere to British Polling Council rules. At present, there are six - YouGov, TNS-BMRB, Survation, Panelbase, Ipsos-Mori and ICM. Whenever a new poll is published, it replaces the last poll from the same company in the sample. Changes in the Poll of Polls are generally glacial in nature due to the fact that only a small portion of the sample is updated each time.)

Wisdom on Wednesday : Choose your words carefully, because they may have to last you for a while

"If we vote No, the sole message that London will hear is: do whatever you like to us, because we don't care enough to stop you."

Author and playwright Alan Bissett.

Separate rooms might have been better, Darling

Just to let you know that I have a new article at the International Business Times about the errors made by Labour over the last few years that ultimately led to Alistair Darling's crushing defeat last night.  You can read the article HERE.

I know the blood-curdling title looks like very typical Scot Goes Pop fare, but believe it or not it's been considerably sexed up from the one I actually suggested!

ICM poll confirms that a brilliant Alex Salmond stormed to a decisive win in tonight's crucial TV debate

The results of ICM's instant post-debate poll are as follows :

As far as you are concerned which one of the two leaders do you think won the debate?

Alex Salmond 71%
Alistair Darling 29%

There were red faces at both the BBC and the Guardian tonight, as the disconnect between the above numbers and the initial spin that both organisations attempted to place on the debate illustrated vividly just how out of touch they often are with the instincts and concerns of the electorate in Scotland.  Andrew Sparrow of the Guardian hilariously called it "a draw" (yeah, that Brazil v Germany match was pretty close as well, wasn't it, Andrew?), while Allan Little of the BBC bizarrely observed that this debate was "much closer" than the previous one.  Thankfully, good old Brian Taylor partly saved the day for the BBC by popping up afterwards to insert a dose of realism, and to declare that Alex Salmond would be the happier of the two men.

I probably shouldn't be too hard on Allan Little, who has consistently been the best and most even-handed BBC network reporter on the referendum.  But just to emphasise how absurd the "much closer" claim is, the ICM poll after the first debate gave Alistair Darling a mere 12% advantage, which wasn't all that far outside the standard margin of error (and was probably inside the real world margin of error, given the severe upweighting of some groups of respondents).  Tonight's ICM poll gives Alex Salmond the win by a whopping 42% margin.

Would it have been better for Yes if Salmond could have produced these kind of dream numbers in both debates?  Perhaps, but there's also a lot to be said for being on the right side of a "comeback kid" narrative, and if any of us had to choose which of the two debates we'd rather have seen result in a clear Salmond win, it would undoubtedly have been this one, with postal votes just about to be sent out.

If the poll results had been slightly closer, I have no doubt that the unionist media would have attempted to maintain the risible line of "it was a draw".  As it is, they'll be unable to completely ignore the elephant in the room, although I suspect their back-up argument will be "Salmond won, but it doesn't really matter".  To be fair, they can pray in aid the fact that ICM have before-and-after numbers for voting intentions, which on the face of it suggest that Salmond's win had only a minimal impact -

Should Scotland be an independent country? (Post-debate figures, with changes from pre-debate figures in brackets)

Yes 49.5% (+0.6)
No 50.5% (-0.6)

However, exactly the same thing happened in ICM's instant poll after the first debate, and yet the majority of the polls since then have shown movement (mostly towards Yes).  So the true impact may not become clear until voters have had a chance to reflect on the debate, talk about it with family and friends, and digest the media spin on it - which ironically will be largely driven by the ICM poll itself.  And it should also be remembered that ICM's respondents may have wanted to avoid looking fickle by admitting that the debate had directly changed their voting intention.

Now.  Ahem.  You'll probably have noticed that, regardless of the fact that they didn't alter much after the debate, the voting intention numbers listed above are rather wonderful for Yes.  Should we be excited?  Only up to a point, because ICM have once again been at pains to point out that this is not a normal representative poll, and was by definition restricted to people who were planning to (and who actually did) watch the debate. Nevertheless, the results were still weighted to reflect the demographic profile of the Scottish population, so what we've ended up with is a curious 'half-breed' poll, which doesn't attempt to directly reflect either the population as a whole or just the fraction of the population that watched the debate, but instead aims to artificially hover somewhere in between those two possibilities, which you'd think really ought to be mutually exclusive.  So although the voting intention numbers can't be regarded as fully reliable, they shouldn't be dismissed out of hand either.  At the very least, we can certainly use them to help measure how opinion has changed between the two debates, because ICM performed exactly the same exercise last time around.  On the pre-debate figures, these are the changes since the 5th of August -

Yes 48.9% (+2.0)
No 51.1% (-2.0)

And on the post-debate figures...

Yes 49.5% (+2.7)
No 50.5% (-2.7)

Although the swing to Yes is within the margin of error, it's entirely consistent with what we've been seeing in the last three 'proper' polls, from ICM, YouGov and Panelbase respectively.

And so much for Salmond's much-vaunted "woman problem", by the way.  ICM found that female watchers of the debate were significantly more likely than men to say that Salmond had a more appealing personality than Darling, and had the better arguments.  Having said that, both genders agreed that Salmond won on those counts.

"Isn't it hard not being independent? If you want to build something, you can't build?"

I don't know what it is about the London to Glasgow night bus, but every time I'm on it I seem to find myself sitting either behind or in front of two people who are complete strangers to each other, but who strike up an instant friendship and talk for hours and hours.  Last night, it was a young English woman studying at Dundee University, and a man from distant shores who has been in the UK for five years, and who was travelling to Scotland for the first time as an adventure, because it's too much hassle getting a visa for other European countries.  He knew very little about Scotland, and bombarded the woman with questions about what the country is like and how it's governed.  He seemed a bit perplexed to discover that our taxes still go direct to London, and ruefully told her that Britain had treated his own country in much the same way for two hundred years.  No, no, no, she protested, it's not like that at all, Scotland isn't exploited like an old British colony, because all the money is spread out fairly throughout the UK.  But he was still confused, and asked her : "Isn't it hard not being independent?  If you want to build something, you can't build?"

It just goes to show that it often takes a complete outsider to find true perspective on what is at stake.

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Now that I'm home, I've finally had a chance to look at the datasets from the bizarre Sunday Post poll of over-60s.  It's not possible to make a direct comparison between the headline numbers of this poll and the equivalent age-specific results from previous Survation polls, because breakdowns are usually only given for 55-64s and over-65s.  However, if we look at over-65s only, one thing that leaps out at me is that the Yes/No split with Don't Knows excluded is absolutely identical to the numbers for the same age group in the Survation poll from July, which of course showed the Yes campaign just five points behind among the whole sample.  The No lead in this poll (with DKs excluded) is also only 2% higher than in the over-65s results from the June poll, which similarly showed a 5% gap on the headline numbers.

There's not a huge amount that we can read into yet another poll of a conveniently No-friendly demographic group, but we can at least be reassured that the results are perfectly consistent with a very low No lead.

And don't worry - the unionist media haven't exhausted all of the imaginative possibilities yet.  Coming soon : did members of the Orange Order think Alex Salmond won tonight's debate?  Check out tomorrow's Daily Mail for an exclusive YouGov poll!

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While I was travelling, I couldn't work out how to embed the Phantom Power video that I took part in, so here it is now -