The Referendum on Separation for Scotland: a multioption

Transcription

1 House of Commons Scottish Affairs Committee The Referendum on Separation for Scotland: a multioption question? Third Report of Session Report, together with formal minutes Ordered by the House of Commons to be printed 17 July 2012 HC 543 Published on 13 August 2012 by authority of the House of Commons London: The Stationery Office Limited 0.00

2 The Scottish Affairs Committee The Scottish Affairs Committee is appointed by the House of Commons to examine the expenditure, administration, and policy of the Scotland Office (including (i) relations with the Scottish Parliament and (ii) administration and expenditure of the offices of the Advocate General for Scotland (but excluding individual cases and advice given within government by the Advocate General)). Current membership Mr Ian Davidson MP (Labour/Co-op, Glasgow South West) (Chair) Fiona Bruce MP (Conservative, Congleton) Mike Freer MP (Conservative, Finchley and Golders Green) Jim McGovern MP (Labour, Dundee West) Iain McKenzie MP (Labour, Inverclyde) David Mowat MP (Conservative, Warrington South) Pamela Nash MP (Labour, Airdrie and Shotts) Simon Reevell MP (Conservative, Dewsbury) Mr Alan Reid MP (Liberal Democrat, Argyll and Bute) Lindsay Roy MP (Labour, Glenrothes) Dr Eilidh Whiteford MP (Scottish National Party, Banff and Buchan) The following members were also members of the committee during the parliament: Cathy Jamieson MP (Labour/Co-op, Kilmarnock and Loudoun) Mark Menzies MP (Conservative, Fylde) Graeme Morrice MP (Labour, Livingston) Fiona O Donnell MP (Labour, East Lothian) Julian Smith MP (Conservative, Skipton and Ripon) Powers The committee is one of the departmental select committees, the powers of which are set out in House of Commons Standing Orders, principally in SO No 152. These are available on the internet via Publication The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the internet at A list of Reports of the Committee in the present Parliament is at the back of this volume. The Reports of the Committee, the formal minutes relating to that report, oral evidence taken and some or all written evidence are available in a printed volume. Additional written evidence may be published on the internet only. Committee staff The current staff of the Committee are Eliot Wilson (Clerk), Duma Langton (Inquiry Manager), Hannah Lamb (Senior Committee Assistant) and Ravi Abhayaratne (Committee Support Assistant). Contacts All correspondence should be addressed to the Clerk of the Scottish Affairs Committee, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general enquiries is ; the Committee s address is scotaffcom@parliament.uk

3 The Referendum on Separation for Scotland: a multi-option question? 1 Contents Report Page Summary 3 1 Introduction 5 2 An additional question on the ballot paper 7 The changing position of the Scottish Government 7 Is there demand for a further devolution question on the ballot paper? 8 3 The evidence we heard 9 Is there a scheme for further devolution which could be put to electorate? 9 Plans for further devolution 12 The difference between separation and more devolution 13 Is it possible to hold a referendum with more than two options? 14 4 Conclusion 22 Conclusions and recommendations 23 Formal Minutes 25 List of Reports from the Committee during the current Parliament 26

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5 The Referendum on Separation for Scotland: a multi-option question? 3 Summary Widening the number of options to be put in front of the voters in a referendum may at first sight be an attractive proposition: but it suffers from a number of fatal defects. Leaving aside the charges of political opportunism which can quite fairly be laid against the Scottish Government in pursuing this option, the evidence we heard shows very clearly the challenges and defects of the notion. The Scottish Government does not have a mandate to hold a referendum on greater devolution. What it promised was a referendum on separation, and we agree they should be enabled to hold that. It is for those political parties and organisations which genuinely support devolution to make proposals for developing it, and propose how put those plans before the electorate. It is perfectly clear that there are, at present, no developed plans for further devolution. In particular, the idea of devolution max is no more than a phrase in search of content. No plans exist, and none are in prospect which could properly be put forward to the voters in any referendum. A referendum is a way in which the voters make a decision, or a choice. It is entirely appropriate to deal with the question of separation. But changing the devolution settlement is a different kind of choice. A referendum could only deal with the question of more powers if there were a proposal, and if the voters could be assured that, were they to support it, it would be put into effect. That means such a proposal has to be developed and broadly agreed in advance in the UK and the Scottish governments and then. No such proposal exists, and none is being developed. There are very serious unanswered questions about how a three-option referendum would work. There are a number of potential ways in which the results could be calculated and aggregated, and it is deeply disturbing to discover that the choice of voting and counting mechanism could well determine the outcome. That is not acceptable. The outcome should be determined by the choices of voters it should be clear to them what the consequences of their decision will be. It is probably for this reason that multi-option referendums are very uncommon internationally, on national issues of this sort. International experience strongly suggests that they are inappropriate because they do not lead to effective decisions. That would be true for Scotland.

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7 The Referendum on Separation for Scotland: a multi-option question? 5 1 Introduction 1. This is the fourth Report in our series of reports about the referendum on separation for Scotland. It follows on from our Report on the legal competence of the Scottish Parliament to hold a referendum on separation, and how that gap should be repaired. 1 It deals with the question of how many options can be offered to the voters in a referendum on separation. We are issuing this Report now because it has been widely suggested that the Scottish Government, despite its support for separation, favours a referendum with an additional option of more devolution. 2. The Scottish Government s manifesto for the 2011 Scottish Parliament elections contained a commitment to a referendum on separation. In the consultation paper Scotland's Constitutional Future, the UK Government said: The Scottish National Party entered the May 2011 election with a manifesto pledge for a referendum on independence. They have campaigned consistently for independence, and while the UK Government does not believe this is in the interests of Scotland, or the rest of the United Kingdom, we will not stand in the way of a referendum on independence: the future of Scotland s place within the United Kingdom is for people in Scotland to vote on The devolved Scottish Government cannot claim a monopoly of political legitimacy in addressing Scotland s constitutional future. All of the parties who gained seats in Scotland the 2010 General Election in Scotland, apart from the Scottish National Party, campaigned on the basis of more powers for the Scottish Parliament. The manifestos of the Labour, Liberal Democrat and Conservative Parties all committed to taking forward the recommendations of the Calman Commission on Scottish devolution. Those parties gained an overwhelming share of the vote, and indeed in the seats at Westminster representing Scotland. It is, of course, Parliament at Westminster which has the legal authority to increase the powers of the Scottish Parliament, and the election results of 2010 gave a clear mandate to pursue further devolution to Scotland. These increased powers have now been put into effect in the Scotland Act 2012, which the Secretary of State for Scotland described as the biggest fiscal transfer of powers within the United Kingdom since the Union of The UK Government s consultation paper was concerned principally with the legal uncertainty about the powers of the Scottish Parliament to hold such a referendum. We addressed this issue in our Report, The Referendum on Separation for Scotland: Making the process legal 3, and we fully agree with the UK Government s analysis that the Scottish Parliament does not have the power legally to hold a referendum on separation, or indeed 1 Scottish Affairs Committee, Second Report of Session , The Referendum on Separation for Scotland: making the process legal, HC 542; see also Sixth Report of Session , The Referendum on Separation for Scotland: Unanswered questions, HC 1806, and Eighth Report of Session , The Referendum on Separation for Scotland: Do you agree this is a biased question?, HC Scotland Office, Scotland s Constitutional Future: A consultation on facilitating a legal, fair and decisive referendum on whether Scotland should leave the United Kingdom, Cm 8203, January 2012, p. 5 3 Scottish Affairs Committee, Second Report of Session , The Referendum on Separation for Scotland: making the process legal, HC 542

8 6 The Referendum on Separation for Scotland: a multi-option question? on extending its own powers. The UK Government s consultation paper was hurriedly followed by a consultation paper from the Scottish Government. In it, the Scottish Ministers welcomed the UK Government s offer to remove legal barriers to holding a referendum on separation, and repeated the SNP position that a referendum dealing with separation only was their preferred option. They added, however, that: The Scottish Government s position remains that it is willing to include a question about further devolution on the lines of devolution max if there is sufficient support for such a move Such support can only properly come from those who support devolution, or more devolution, rather than separatists seeking to use devolution as a stepping stone towards separation. 4 Scottish Government, Your Scotland, Your Referendum A consultation document, January 2012

9 The Referendum on Separation for Scotland: a multi-option question? 7 2 An additional question on the ballot paper The changing position of the Scottish Government 6. The success of the Scottish National Party in the 2011 Scottish Parliament elections was seen by many as giving it legitimacy to call for a referendum on separation. This view appears to be accepted by the United Kingdom Government. Provided the legal difficulties about holding the referendum are sorted out by agreement between the governments, such a referendum can and now in our view should take place. Over the summer period, however, the position of the Scottish Government, and the Scottish National Party, appears to be changing. Instead of being willing to be persuaded by others that an additional question should be included in referendum, the Scottish Government now seems to be arguing for this themselves. 7. For example, on 1 July, the Sunday Herald newspaper quoted the First Minister as saying that Scots had a right to choose to have what he described as a devolution max position, and that the argument for a second question in the referendum was attractive. 5 On the same day, the former SNP MSP Duncan Hamilton, writing in Scotland on Sunday, said that supporters of separation should favour a second question on the referendum ballot paper as a step towards separation There is an obvious political motive behind the changing position of the Scottish Government. Throughout the 13 years since the creation of the Scottish Parliament, support in opinion polls for Scottish separation has remained broadly the same level. It has seldom exceeded one third of those responding to polls, and sometimes fallen below one quarter. Over recent months, as debate on the possibility of separation has become more intense, and the detailed policy issues which it raises begun to be examined, support has fallen rather than risen. A recent poll indicates support for separation 20 percentage points behind support for remaining part of the United Kingdom. 7 So it is perhaps unsurprising that a nationalist government looks for a way out, and tries to find a way of rescuing something from a prospective referendum defeat. 9. This alone would be enough to condemn the idea of a second question as an opportunistic political manoeuvre. The political authority that was conferred on the Scottish Government by the Scottish election results was not the authority to call a for referendum on further devolution: it was for a referendum on separation, and that is the mandate which it has. It is those parties which campaigned in the 2010 General Election for a programme of more devolution who have a mandate from the Scottish people to pursue that; the Scottish National Party does not. 5 Salmond: Scots have a right to second question on devo max, The Sunday Herald, 1 July More honesty required on both sides of independence debate, Scotland on Sunday, 1 July Support for independence falls to 30%, poll shows, The Scotsman, 10 July 2012

10 8 The Referendum on Separation for Scotland: a multi-option question? Is there demand for a further devolution question on the ballot paper? 10. The first question to be asked is whether the support which the Scottish Government says is needed does, in fact, exist. The most obvious place to look is in the responses to the two consultations. Although the Scottish Government consultation closed in March, the results have not, as yet, been made public. This contrasts with the United Kingdom Government, which published in full all of the responses to its consultation on 17 May It may be that those who responded to the Scottish Government offered compelling arguments as to why there should be three options in the referendum. This was, however, certainly not the case for respondents to the UK Government's consultation. 11. Consultation is important, but it is not just a question of weighing the responses. We are well aware that many responses were in an identical pre-prepared format. Nevertheless, of the 2,500 people who responded to the UK consultation on this point, 75% were opposed to having more than one question in a referendum, and most of those who expressed that view did so on the basis that a single question would ensure a more decisive outcome, on the critical issue of whether or not Scotland should remain within the United Kingdom One respondent described including a second question on further devolution as a recipe only for voter confusion, highly ambiguous results, and for widespread incomprehension. Only about 12% of respondents favoured including a further question. Some were unable to come to a view. For example, Scotland s national academy, the Royal Society of Edinburgh, said: In our view it is not possible to determine at this stage whether or not it would be appropriate to include an additional question. Before that, the proponents of such a question would need to define, and explain to the electorate, the nature, extent and implications of the further devolution which they envisage There is nothing in the published consultation responses to suggest a widespread demand from those who favour more devolution for an additional question to be placed on the referendum ballot paper. We nevertheless considered this possibility in detail in our own evidence sessions. 8 Scotland Office, Scotland s Constitutional Future: Responses to the consultation, Cm 8326, April Ibid.

11 The Referendum on Separation for Scotland: a multi-option question? 9 3 The evidence we heard 14. The Secretary of State for Scotland made it clear to us that the United Kingdom Government s view was that there should be a single, clear and decisive question which should be put to the voters. He said: We are clear that our preference is for a single question. Let us not lose sight of the fundamental issue at stake here. We are going to decide whether Scotland stays within the United Kingdom or not. This generation of Scots will determine the most important decision in 300 years. 10 Many of our witnesses agreed with this approach. For example, the devolution campaigner Nigel Smith said, I have absolutely no doubt, even though I am a devo-maxer, that I want a binary referendum Some witnesses, however, did take a slightly different view. Since opinion poll evidence suggested that Scottish opinion was divided between the status quo, a desire for more devolution (loosely referred to as devolution-max or devo-max ) and a desire for separation, they suggested that a referendum which appeared to polarise the choice between the status quo and separation would not put before the voters an option which many of them, on the face of it, favoured. 16. Professor Vernon Bogdanor, of King s College, London, put the point this way: The fundamental argument for the third option is that it seems from opinion poll evidence that this is the option which most Scots favour. 12 Professor John Curtice, of Strathclyde University, thought that A referendum is less likely to resolve an issue if it fails to encompass (and specify fairly) what are widely regarded as all of the key policy alternatives. 13 Professor Iain McLean, of Nuffield College, Oxford, thought that providing that devolution max can be defined to the satisfaction of the Electoral Commission it would be desirable to have it as a ballot option. 14 [his emphasis] 17. On the face of it, these may seem like attractive arguments, but the evidence we heard (including from those witnesses who tended to support having a third option) showed very clearly that this was nothing like as simple and straightforward a proposition as it might seem at first glance. Is there a scheme for further devolution which could be put to electorate? 18. A repeated theme in our evidence was that if any scheme of further devolution, beyond the provisions of the Scotland Act 2012, were to be put to the voters, a detailed proposition would have to be developed. This is the point made by the Royal Society of Edinburgh in 10 The Referendum on Separation for Scotland: Oral and written evidence, Session , HC 1608, Q HC 1608 Q HC 1608 Q HC 1608 Ev HC 1608 Ev 178

12 10 The Referendum on Separation for Scotland: a multi-option question? response to the Scotland Office consultation: that the extent and nature of any proposed scheme of further devolution would have to be presented and explained to the voters. Those witnesses whom we heard who favoured putting a wider range of choices in front of the electorate all agreed with this. For example, Professor Bogdanor said an option for Devo Max should not be put on the ballot paper just as an aspiration Professor McLean had a similar view: 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 Professor Curtice agreed: An ideal situation would be that what went on the ballot paper was something that the current UK government [ ] had indicated in advance that they supported and would be willing to implement It was clear from our evidence that the only scheme of further devolution that had been developed in detail was the Scotland Act (During the course of our enquiry the Scotland Bill completed its legislative process and was agreed between Parliament and the Scottish Parliament.) The First Minister of Scotland has referred to ideas of full fiscal autonomy which he appears to equate to devolution max". The fact that these ideas have been mentioned, however, does not mean that they are schemes which could be put into practice. In evidence to us, Owen Kelly of Scottish Financial Enterprise put it this way: Devo-Max can be all things to all people. 18 Similarly, Martin Boon of ICM Research said: If the people proposing devo-max are not capable of defining exactly what it is, why should anybody expect the public to understand what it is about? 19 Andrew Hawkins, the chairman of Comres, the polling organisation, was equally blunt: the only way it could work would be if we knew what the options are and what they actually mean what devo-max means None of our witnesses was able to point to any such scheme, or indeed to anyone developing such a set of proposals. (In their consultation paper, the Scottish Government referred to papers produced in their national conversation before 2007, so as to give the impression that these papers contain a workable scheme of devolution max" which could be put into practice if it were agreed. Even the most superficial reading of these papers, however, demonstrates that this is not the case.) We note that this also appears, now, to be the view of the Co-convenor of the Scottish Green Party, Patrick Harvie MSP, who has 15 The Referendum on Separation for Scotland: Oral and written evidence, Session , HC 1608, Q HC 1608 Q HC 1608 Q HC 1608 Q HC 1608 Q HC 1608 Q 932

13 The Referendum on Separation for Scotland: a multi-option question? 11 been quoted in the press as saying that no second question should be added to the referendum as no coherent proposal for further devolution exists. He stated: To be legitimate, a second question needs to be clear and it needs to represent a meaningful mandate. Now a couple of organisations have tried to define what devo max or devo plus might look like. I don't think they ve achieved the clarity that's needed. People don't know what they're voting for Others have since expressed the same view. We agree. From the evidence we have heard and read, devolution max is little more than a phrase. 24. One witness, however, did argue for more devolution, if not for devo-max, and was developing plans for it. A former member of the Scottish Parliament, Jeremy Purvis, of the Devolution Plus group, which is supported by the think tank Reform Scotland, explained the plans he and his colleagues were developing for extending fiscal devolution in Scotland. The work of his group was not yet complete, but it would make a case for the further devolution of taxes. He explained that they sought to divide taxes into those which should be Scottish, those which could be shared between the Scottish and UK levels, and those which should be wholly retained by the UK. Although he hoped to move towards a situation where the Scottish Parliament was responsible for more or even most of the revenue it needed, he did not advocate a system akin to the First Minister s notion of full fiscal autonomy under which all taxes raised in Scotland would be the responsibility of the Scottish Parliament. 25. He did not, however, propose that the scheme which his group developed should be placed on the referendum ballot paper alongside the decision whether Scotland should remain in the United Kingdom. He explained: That is why we have the position that we are neither pressing for nor calling for a separate question, a separate referendum, or any particular type of process, for the strong reason that we believe many of our proposals could be implemented in the normal statutory manner as the Scotland Act has been delivered We agree with this conclusion. Just as the Scotland Act 2012 emerged from commitments in party manifestos in the General Election, it would be equally legitimate for further development of devolution to be decided on in this way. Indeed, the Scotland Act 2012 already allows for the extension of tax devolution by means of secondary legislation if both Parliaments agree (just as the Scotland Act 1998 makes provision for the devolution of legislative and executive powers by agreement as well). It is hard to avoid the conclusion that there are some in the SNP and the Scottish Government looking for schemes of further devolution to be added to the referendum on separation, as an insurance policy against the verdict of the Scottish electorate. 27. Of course we do acknowledge the evidence that there are many people in Scotland who do not support separation, but are attracted to further devolution. Professor Curtice, for example, drew our attention to opinion poll evidence which suggests that a majority of 21 Scottish independence: Greens may push for single question, 9 July The Referendum on Separation for Scotland: Oral and written evidence, Session , HC 139, Q 723

14 12 The Referendum on Separation for Scotland: a multi-option question? Scots want as many domestic decisions as possible taken in Scotland, though only a relatively small minority want the Scottish Parliament to discharge the traditional functions of a nation state, such as foreign affairs or defence. Two considerations must, however, be borne in mind when looking at this evidence. 28. First of all, the evidence indicates that, as Professor McLean put it, in polling, voters are offered a menu without prices. 23 That is to say, when answering pollsters questions, voters have not had the opportunity to consider detailed proposals which would set out the costs as well as the potential benefits of changes of this kind. In response to such questions respondents have a natural tendency to express support in the abstract for more decentralisation whether from London to Edinburgh, from Edinburgh to different parts of Scotland or even from Glasgow to Govan. The second consideration relates to the fact that contrasting the status quo with further devolution is now misleading. Plans for further devolution 29. During the period of our inquiry, the Scotland Act 2012 was passed by Parliament, with the agreement of the Scottish Parliament, and has received Royal Assent. As is well known, the Act puts into effect recommendations of the Commission on Scottish Devolution, chaired by Sir Kenneth Calman. The Calman Commission was set up by the Scottish Parliament and the UK government, with the agreement of all the main political parties except the SNP. It concluded that devolution was both successful and popular, and that it should be developed by extending the taxation and borrowing powers of the Scottish Parliament so as to strengthen its fiscal accountability. Taking forward the Calman recommendations featured in the manifestos of all the main parties in the 2010 General Election, and a Bill to implement them was introduced into Parliament in November It was subject to extensive scrutiny in Parliament and at Holyrood, which then voted over overwhelmingly in support of it. 30. As a consequence, the Scottish Parliament will now gain substantial tax and borrowing powers, including a new Scottish Income Tax and other Scottish taxes. These powers are planned to come into effect after the date of the proposed referendum. The Act also makes provision for further taxes to be devolved by Order, just as further legislative and executive powers already can be. This changes the context of the debate. It is no longer right to contrast the status quo with more devolution. Unless Scotland votes to leave the UK, there will be more devolution under these plans. The initial extent of more fiscal devolution has already been set out by the Government. It will involve about 30% of the current expenditure of the Scottish Parliament being financed by devolved taxes. Further fiscal devolution will depend on agreement between the UK and Scottish Governments. More devolution and, in particular, more devolution of tax powers, is therefore the option against which any proposed change must be compared. The status quo, in the sense of a Scottish Parliament with only the very limited tax-raising powers it was given in 1999, has already changed. 23 The Referendum on Separation for Scotland: Oral and written evidence, Session , HC 1608, Q 289

15 The Referendum on Separation for Scotland: a multi-option question? 13 The difference between separation and more devolution 31. Another issue which emerged in our evidence was the qualitative difference between a decision on separation, and a decision about more devolution. It was widely acknowledged by our witnesses and others involved in the debate that if the Scottish people voted to separate from the rest of the United Kingdom, that would be a legitimate choice which should be respected. It was the exercise of self-determination. As Professor Bogdanor put it in his written evidence: The issue of independence is one for the Scottish people alone [ ] It is now generally accepted that if it is the settled wish of a particular part of the United Kingdom that it wishes to secede it should be entitled to do so There was extensive discussion among our witnesses as to whether it would be better for a referendum on separation to be held after the terms of separation had been negotiated. In oral evidence, Professors Bogdanor, Curtice and McLean, and Professor Peter Kellner, of the YouGov polling organisation, all agreed that it would be better if the terms of a potential separation were discussed and agreed before the Scottish people took a decision on it. They recognised however, that there was a choice. Professor McLean said: You can either do all the negotiations ahead of time, with the downside risk that some of the people will not accept it, or you do none of the negotiations ahead of time The issue of the terms of any break-up of the United Kingdom is one to which we will return in future Reports, but, for the purposes of this Report, what is important is that witnesses agreed that it was possible (even if the distinguished political scientists who appeared before us thought it less than desirable) for a referendum on separation to be held and for the Scottish people to take a decision to leave the United Kingdom, and negotiate the terms of separation with the rest of the United Kingdom subsequently. By contrast, none of our witnesses thought it was at all sensible for a vote on more devolution to be held without the scheme of devolution being negotiated with the United Kingdom government in advance. 34. Our witnesses agreed that more devolution was not something which could be unilaterally decided by the Scottish people, but rather something which had to be negotiated with the rest of the United Kingdom. None of them agreed with the idea that Scotland had a right to decide on further devolution. Professor Bognador thought simply that the issue of further devolution is one for the United Kingdom as a whole for it alters the terms on which Scotland remains within the Union. 26 Professor McLean agreed: Several of us have been writing that Scotland could declare its independence unilaterally, but as Vernon [Bogdanor] has just said, it could not declare devo-max unilaterally HC 1608 Ev HC 1608 Q HC 1608 Ev HC 1608 Q 286

16 14 The Referendum on Separation for Scotland: a multi-option question? 35. This view was not confined to the academic community. Ian McMillan, of the Confederation of British Industry, told us: If Scotland secedes from the Union, that s it; there will be secession negotiations and we will go our separate ways. By that, we mean that a devolved Scottish Government cannot impose its will on the UK Government or Parliament by saying, We want these matters devolved. It can only be done by agreement. That is why our members believe that needs to be outside the scope of the referendum None of these witnesses was arguing that more devolution required a referendum across the United Kingdom. Professor Bogdanor, for example, drew attention to the difficulties which might arise if Scotland voted for more devolution but the rest of the United Kingdom voted against it. Rather, they were making the point that those who represent the interests of the rest of the United Kingdom (the UK Government and Parliament) had to be satisfied that a scheme of devolution to Scotland was acceptable from their point of view. This was, of course, precisely what happened in 1997, and again on the proposals in Scotland Act Professor Curtice said: 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 then seemed to be a degree of head of steam be it a version of devo max or plus or whatever [ ] The referendum will only work if, at the end of the day, somebody comes up with the proposition that everybody else is willing to agree should be on the ballot paper We agree, and consequences flow from this: any scheme of devolution which may be proposed must have the consent of the rest of the United Kingdom, and in practice that means being agreed beforehand with the UK Government and Parliament. Although the witnesses did not draw attention to this, this is not a one-way constraint. A scheme of devolution could not be proposed by Westminster with a view to imposing it on the Scottish Government and Parliament without their agreement. That is illustrated by the Sewel Convention, and explains why there was a very careful process of negotiation and agreement of the provisions of the Scotland Act A scheme of further devolution could properly be put to the Scottish voters only if voters could be confident, that if they supported it in a referendum, it would be agreed and implemented by both the Scottish Parliament and the United Kingdom Parliament. Holding a referendum on a scheme which could not be implemented whether because the UK Parliament did not agree it, or because the Scottish Parliament did not would be a fraud upon the voters and little more than a political device to put pressure on whichever Parliament which had not agreed. Is it possible to hold a referendum with more than two options? 39. The evidence we heard has convinced us that no scheme for further devolution exists which could properly be put on the referendum ballot paper. No-one has developed a scheme, still less a scheme agreed by the UK and Scottish Governments, which, if it were 28 HC 1608 Q HC 1608 Q 283

17 The Referendum on Separation for Scotland: a multi-option question? 15 voted on, could and would be implemented. But we have nevertheless considered whether, if there was such a scheme, it would be sensible to put it on the ballot paper alongside the choice on separation. In our inquiry, we heard a great deal of evidence about whether it was possible for a referendum to be held in which the voters were given more than two options. This raises a number of quite complex technical issues, but they are of great importance, and, even if the possibility is only a theoretical one, they deserve to be considered fully. 40. All the referendums which have hitherto been held in the UK have been binary choices. Typically, the choice was between the status quo and some proposed constitutional innovation. The recent referendum on more devolution for Wales, for example, offered the voters the choice between the Welsh Assembly with its present powers, and a Welsh Assembly with greater legislative powers. The referendum on the Alternative Vote system offered them a choice between that system and the present first-past-the-post electoral system. 41. A binary choice has advantages of clarity, simplicity and decisiveness. In its consultation paper on the referendum on separation for Scotland, the UK Government laid much emphasis on the need for a separation referendum to be clear and to settle decisively the question of Scotland s future inside the United Kingdom. The paper said: On an issue as important as whether Scotland remains part of the UK, the arguments must be presented clearly, to allow people in Scotland to make an informed decision The Secretary of State for Scotland made his view clear: It seems to me important that we have that in a straightforward and simple way, and that means a single question as far as I am concerned. 31 We agree that it is of the greatest importance that the referendum decides whether or not Scotland should remain a part of the United Kingdom. Uncertainty is bad for Scotland and is bad for the rest of the UK. 43. Our expert witnesses had differing views on whether a three-option referendum was wise, and, if one was held, on how the results might be interpreted. A number of witnesses raised the question of how the results of a three-option referendum ought to be calculated. For example, Professor Adam Tomkins, of the University of Glasgow, in his written evidence asked: What would be the consequences of the following vote, for example: on a 65% turnout, 35% of those voting vote for the status quo, 40% of those voting vote for full fiscal autonomy, and 25% of those voting vote for full independence? A number of witnesses asked essentially the same question: if more than one option in a three-option referendum secured majority support, which would win? As Professor Kellner said: 30 Scotland s Constitutional Future, p HC 1608 Q HC 1608 Ev 157

18 16 The Referendum on Separation for Scotland: a multi-option question? 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 questionindependence 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. 33 Professor Stephen Tierney, of the University of Edinburgh, explained I think the real controversy possibly on turns on how you make the decision when you have more than two options. That is the really tricky bit We were fortunate in receiving very full evidence on this complex technical question from a number of experts. Peter Kellner set out the main principles which lay behind the choice. He said: There are various ways in which a three-option referendum could be held. And the choice of system could decide the outcome. Here are five examples of different approaches to three-option referendum The five different approaches which Professor Kellner referred to were as follows: First-past-the-post Alternative vote Two questions, version A Two questions, version B Condorcet voting 47. The two different versions of the two questions approach related to which gateway question is asked first. We explain this below. Other experts broadly agreed with Professor Kellner s analysis. Professor Denis Mollison, of Heriot Watt University, for example, in his written evidence, told us: To be the clear winner of a three option referendum, one of the options must have a majority over each of the alternatives. The most general way of doing this, a method that works for any set of three options, requires either preferential voting or asking three questions HC 1608 Q HC 1608 Q HC 1608 Ev HC 1608 Ev 223

19 The Referendum on Separation for Scotland: a multi-option question? Professors Curtice and McLean agreed that the best way to make a choice among three options, whatever they were, was to ask questions which ensured that the Condorcet winner was identified: that is to say, the option which when compared to either of the other two options secures a majority. 37 All of our experts noted that it was in principle possible for the distribution of voting preferences to be such that there was no such option, but all regarded this as a highly unlikely outcome. The concept of a Condorcet winner, is an important one, but is quite a complex idea. Professor McLean explained in his written evidence that it was part of a wider disciple of electoral mathematics: 3. The academic discipline known as social choice, that is, the mathematical study of the properties of choice and election systems, has existed for over 200 years and has a lot to say on the practicality of a 3-option referendum; but it has not featured in policy discussions to date. 4. The most relevant result is that if opinion is single-peaked, then any well-behaved choice system will select the majority-winning option. I define these terms below. 5. Opinion is single-peaked if the options can be arranged in some order such that nobody ranks the middle option(s) lowest. Opinion on constitutional options for Scotland would thus be single-peaked if, for instance, everybody whose first preference was Scottish independence ranked devolution-max above no change, and everybody whose first preference was no change ranked devolution-max above Scottish independence. 6. A majority-winning option is an option which wins a majority in straight comparisons with each (all) of the other options on offer. 7. A well-behaved choice system is one which always selects the majority-winning option when one exists. There are rare circumstances, known as a cycle, in which no majority-winning option exists (ie, A beats B, which beats C, which beats A). Although of great theoretical interest, this possibility is probably not relevant to the Committee s current inquiry. However, it must be considered by Parliamentary draftsmen As Professor Curtice explained in his written evidence, the Condorcet winner is a majority winning option. He said: It is often argued any winner of a multi-option ballot should fulfil is that it represents the Condorcet winner. The Condorcet winner is the option that is preferred by most voters in all of the possible pairwise comparisons of the options on the ballot paper. In other words, if there are three options on the ballot paper, A is the Condorcet winner if more people prefer A to B and more prefer A to C All the expert witnesses agreed on the principle of using an electoral system which would identify the Condorcet winning option, but none of them disagreed on the best 37 This term is used because the mathematics of the process were first devised by a French aristocrat, Marie Jean Antoine Nicolas de Caritat, Marquis de Condorcet, at the time of the French Revolution. 38 HC 1608 Ev HC 1608 Ev 182

20 18 The Referendum on Separation for Scotland: a multi-option question? voting method to use to find it. Some concluded that, since it was likely that, in a threeoption referendum, the middle option was likely to be the second preference of many voters, then the full requirement of three questions or preferential voting could be discarded. It would then be possible to ask a gateway question, followed by a choice. A gateway question could be Do you prefer the status quo or change?", followed by the question, If there is to be change do you prefer independence or more devolution?". This option was proposed by the Electoral Reform Society in their written evidence, and had also been proposed by the First Minister in the Scottish Government s 2007 consultation. It attracted little support from those appearing before us. 51. Professor Bogdanor said, 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. 40 Professor Kellner noted, I would point out that none of us has supported the First Minister s particular proposal. 41 Professor Curtice added, 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 Alternatively, the gateway question could be Do you prefer independence or remaining within the UK?. It would be followed by a question like If Scotland remains within the UK, do you prefer the status quo or more devolution?" (This is the second of Professor Kellner s version A and version B of the two-question option.) This option was proposed to us by Professor Curtice in his oral evidence. He argued that it offered the clear choice that was needed on separation and that, because a middle option was likely to be the second preference of many voters who supported either the status quo or independence, there was little chance of failing to identify a Condorcet winner by asking only two questions in this case. Professor Mollinson s analysis suggested the same Professor McLean argued, by contrast, that the proper way to do this would be to have preferential voting, to invite the voters to rank the options 1, 2 and 3, and then to count the preferences so as to assess each voter's relative preference of each clear options. This would identify the Condorcet winner and would work whatever the distribution of preferences actually was, making no assumptions about the views of voters. Professor Bogdanor, on the other hand, favoured a run off referendum. That is to say, that rather than ask two questions at once on the same ballot paper, the second question should be asked some weeks later after a period of reflection The experts who appeared before us were, however, unanimous on one point. Given the apparent distribution of voting preferences, the choice of voting mechanism could determine the outcome as the following exchange shows: 40 HC 1608 Q HC 1608 Q HC 1608 Q HC 1608 Ev HC 1608 Ev 180

21 The Referendum on Separation for Scotland: a multi-option question? 19 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 A further issue about a three option referendum arose in the evidence we heard about how to regulate a referendum. Referendums in the UK are regulated by the Political Parties, Elections and Referendums Act 2000, which gives the Electoral Commission powers to regulate the campaign. It seems to be generally agreed that the Commission will discharge that responsibility for a separation referendum. However, the legislative and regulatory framework is designed for a binary referendum and not for a multi option one. When we first asked the Commission what thought had been given to the implications of a multi-option referendum, Mr John McCormick, the Commissioner with responsibility for Scotland, described the possibility as a hypothetical one on which he was unable to comment.46 In later evidence, he added, If you look at three questions hypothetically there may be [...] numerous outcomes. 47 It might thought that as there were three options there might be three campaigns but as Lisa Klein of the Commission pointed out, if you are campaigning for option 1, you may also want to campaign a bit for option 2. It is something complex. We will need to be thinking about it when presented with the situation. 48 This is unsatisfactory. No plans exist to address this question, and it is clear that no multi-option referendum could be decided upon unless a fair system of regulation was agreed. 56. Our witnesses also drew attention to international experience of referendums. Dr Matt Qvortrup, of Cranfield University, who had made a special study of referendums worldwide, drew attention to the comparative rarity of three-option referendums, especially on national constitutional questions. He explained that they tended to be avoided because they did not produce decisive results. I favour [a binary referendum] strongly, but then again I am just a little academic. There have been 222 referendums since Napoleon dealing with national issues. Some, such as that in Wales, deal with more power going to an area and others deal 45 HC 1608 Qq HC 1608 Q HC 1608 Q HC 1608 Q 708

22 20 The Referendum on Separation for Scotland: a multi-option question? with separation. Of those 222, there have only been three referendums where there has been a genuine multi-option possibility. They have been in Puerto Rico twice, unsuccessfully. They did not go to war, but they did not result in separation, basically because the voting basis was split. Then there has been the example in Newfoundland. That was part of the UK. Then there was the option of Newfoundland becoming independent, remaining with the status quo or joining Canada. There was a first round with two options and one was eliminated, and then there was a run-off phase [ ] as a general rule, the fact that there have not been many multi-option referendums at all indicates that they are not a good idea Nigel Smith also had concerns about multi-option referendums. He noted: I think it is possible to have a fair multi-option referendum, but you have to ask why, when so many political questions have more than one answer, there are not more multi-option questions. 50 He also drew lessons from the experience of Puerto Rico, Which has been wrestling with whether to become a state of the union for 50 years. It has always gone down the multi-option route. Finally, a presidential commission recommended that it try a binary this time round. I do not know whether that will produce an answer, because they are now talking about having two binaries on the same day, which is another aspect of the problem The experience of Puerto Rico, which had a long history of constitutional referendums on its relationship with the United States, is instructive. Puerto Rico s relationship with the United States is complex, and uncertain. It is not a State of the Union, but US law applies there. The choices which it has considered include seeking to become a full member of the United States, or changing its relationship in some other way. It has held in total five referendums on how and whether that status should change: Most of these of these have included multiple options. Obviously none of them has produced a decisive resolution of the issue, as Puerto Rico continually has to ask the questions again (perhaps not surprising as None of the above appears to have been the victor in one referendum). 59. This review of the evidence has led us to the conclusion that there is no definitively correct way of structuring the questions and the aggregation of the results in a three-option referendum. While, in principle, identifying the Condorcet winner attracted support from almost all of our witnesses, there was no consensus on the best way to do so: nor did any witnesses identify examples of this being done elsewhere. In our view, it would be wrong to adopt a system of voting which made assumptions in advance about what the preferences of the voters were: any system should work to deliver an outcome that reflects voters preferences as they actually are on the polling day. The fact that virtually all of our experts agreed that the particular choice of questions and voting method could well determine the result suggests to us that this approach is fraught with difficulty and danger. The international experience bears this out: countries which adopt three-option referendums 49 HC 1608 Q HC 1608 Q HC 1608 Q 847