Remain in the UK has to campaign for a confirmatory vote

Robert Hoskins looks at how a vote should be structured, learning the lessons of 2014 and 2016, in the event of a second independence referendum.

Since the morning after the result of the EU referendum which marked a discrepancy in voting behaviour between Scotland and England, the demands for another independence referendum have been ever increasing. The constant nationalist drumbeat for indyref2 has intensified dramatically since Lord Ashcroft’s poll gave Leave UK a 52% – 48% lead. This poll marked the first lead in favour of independence since March 2017.

In marked contrast to the clamour for a second indyref there has been absolutely no debate whatsoever on what the structure of the next referendum should be. Perhaps the reason for the absence of debate on this is because the nationalists assume that it will be an identical rerun of September 2014 consisting of a one vote event, based on a win requirement of 50% + 1, with no turnout threshold or confirmatory vote required. Indeed the nationalists’ referendum bill which is currently being fast tracked through Holyrood suggests just that. The Bill assumes that a repeat of the one-off 2014 referendum is a given and only includes provision to set the date, the referendum question (which the Electoral Commission wants to change from Yes/No to Leave/Remain) and the referendum period  by secondary legislation.  Surprisingly, there has been no challenge about the structure of the next referendum from other political parties, which would suggest that they too assume and are happy with it being a rerun of September 2014. 

Have parties actually rigorously scrutinised current academic thinking on what best practice should look like, in light of an impending No Deal Brexit, for the structure of the next referendum should there be one?  My guess is that they have not and as a result we are sleepwalking the nation into a second referendum which will be an exact replica of the first, thus depriving the public of an informed debate on what lessons if any have been learned from the Brexit debacle.

If parties have engaged with what constitutes current best practice in implementing referendums in the UK, they will have encountered the recommendations outlined by the Independent Commission On Referendums (ICORs). The Constitution Unit of University College London established the Commission post Brexit in 2017 to review the role of referendums in British democracy. The Commission comprises of 12 members who are made up of a variety of former cabinet level ministers, current and former parliamentarians including the Tory MP Dominic Grieve and the former chair of the Electoral Commission. The Commission is an advisory body only, with no power to force governments who are conducting a referendum to implement their recommendations. However, its recommendations on how British referendums are conducted are the nearest to a gold standard endorsement that is currently available in the UK and are therefore worthy of  discussion.

How does the 2014 referendum stand up with regards to what the ICORs now considers to be best practice post Brexit? Let’s break down the structure of the first independence referendum into its constituent parts – a majority of 50% + 1, no turnout threshold and a one off ballot with no confirmatory 2nd vote attached, and scrutinise each in turn.

Majority of 50% + 1

What minimal debate that there has been about the structure of the last referendum has tended to focus on the Edinburgh Agreement’s aspiration that the 2014 referendum should reflect ”a fair test and a decisive expression of the views of people in Scotland and a result which everyone will respect”. It’s a bit of a stretch to suggest that 50%+1 reflects a ”decisive expression”, and the SNP’s constant clamour for a 2nd referendum does not reflect a ”result which everyone will respect”. Therefore it is somewhat surprising to say the least to find the ICORs recommending maintaining the status quo. The rationale behind this decision is equally as baffling as it equates a one vote majority in a parliamentary election or passing legislation by a 1 vote majority as equivalent to a referendum won by one vote more than 50%.

Turnout threshold

Currently there are no turnout thresholds recommended for cessation referendums. The ICORs recommend against having a turnout threshold for several reasons. Most obviously, opponents of change would advocate a boycott of the ballot – something which would likely occur if the SNP advocated an unauthorised independence referendum. Turnout thresholds also require accurate electoral registers to produce legitimate results. Even small register inaccuracies could therefore compromise results.     

Confirmatory vote

Due to the extension of article 50 and the very real threat of a No Deal Brexit, the consequences of which were never debated in the run up to the EU referendum itself, all parties apart from the DUP and the Tories now want a confirmatory referendum to let the electorate have the final say on whether they wish to remain in the EU or leave.

The ICORs endorses the concept of a confirmatory vote in two scenarios. Firstly they recommend that:

”Any legislation enabling a pre-legislative referendum should set out a process to be followed in the event of a vote for change. If a government does not produce a detailed White Paper on the proposals for change, a second referendum would be triggered when the legislation or treaty implementing the result of the first referendum has passed through the relevant parliament or assembly.”

“In cases where a government does produce a White Paper detailing what form of change it expects to secure, the second referendum would be triggered only in the event that there is a ‘material adverse change’ in circumstances: that is, if the expectations set out in the government’s paper are not fulfilled. It would be for the parliament or assembly that called the referendum to determine whether such a ‘material adverse change’ had occurred.”

”The process to be followed should be specified in the legislation enabling the first referendum, so that the requirement for or possibility of a second referendum, and the reason for it, is clear to the electorate before the first vote takes place. The Commission’s recommendation hence applies to future processes of change requiring a referendum, and is not intended to apply retrospectively.”

(Report of the Commission on Referendums 2018 p203 recommendation 20)

Prof. Meg Russell, the Director of the Constitution Unit, has also stated that this statement should apply to any future Scottish referendum.

If we now assume that the next independence referendum applies this first statement, what would it look like in practice? It would mean that the preceding white paper would have to alert the electorate to the possibility of a confirmatory vote if a ”material adverse change” were to emerge from what was outlined in the white paper to what was delivered when the deal was signed off?  To enable this to occur the SNP would have to produce a detailed white paper presumably outlining the following: what currency they would use; the amount of UK debt they would take on, what interest payments on said debt would be, amount of foreign currency reserves required, start up costs of new state, size of public spending cut backs needed to account for £13.4 billion fiscal deficit and to compensate for loss of fiscal transfer, amount of Capital flight etc. A ”material adverse change” would kick in when the sign-off deal did not resemble promises made in the white paper as is almost certain to be the case in the above example.

But would an SNP government who called for the referendum run the risk of triggering a confirmatory vote against its own proposals even if the deal they got from Westminster did not resemble the deal they envisaged in their white paper, therefore putting independence itself at risk?  Of course they wouldn’t. A combination of extra parliamentary activities would immediately kick in to articulate the anger of the masses. Activities such as the signing of an online petition demanding a confirmatory vote and mass demonstrations, the size of which would easily dwarf all Under One Banner demonstrations put together.

The second example given by the ICORs is far more straightforward:

”Our recent reports have highlighted several key steps that could be taken. One point concerns the structure of the decision-making process. I have argued – building on the proposals of the Independent Commission and the Council of Europe – that, where a referendum must be held on a principle rather than a worked-out plan (as in the case of Brexit or Scottish independence), a process should be set out requiring a second vote on the final agreed deal. This would protect voters’ right to make an informed choice”

(Renwick A, Scotland’s plans for doing referendums better: an assessment – The Commission Unit 2019)

The above second definition would guarantee a confirmatory vote on the final agreed deal. This definition would likely cover any future independence referendum which omitted to give the level of detail set out in example one and offered broad brush stroke policy commitments instead.

Discussion

ICORs provides much welcomed Gold Standard recommendations for the future conduct of the implementation of referendums. It would appear that the 2014 Referendum in its current format is no longer fit for purpose, as the Brexit experience has changed the constitutional make up of future referendums.  If Remain in the UK is to campaign for changes to be made to the 2014 Independence Referendum construct, those recommendations must be rooted in best evidence. To ignore best practice would leave Remain in the UK wide open to the accusation of trying to gerrymander the next referendum to make it impossible for Leave UK to win. That is why Remain in the UK must accept all ICORs recommendations as they will provide much needed legitimacy and gravitas to their case.

Of all the components of the 2014 referendum which the ICORs template has scrutinised, the Commission has provided a much welcomed endorsement for the concept of a confirmatory vote. Arguing for a confirmatory vote provides Remain in the UK with the best case and the best chance for successfully changing the ground rules for the next independence referendum.

It does this in the following ways: the public is now very familiar with the concept of a confirmatory vote as it has been widely debated in the context of Brexit. Repeated opinion polling suggests that there is a majority in favour of a Brexit Confirmatory vote; a precedent has been set as a Brexit confirmatory vote has already been endorsed by all political parties apart from the DUP and the Tories.  The 1st Minister herself has repeatedly called for a Brexit Confirmatory vote making it rather difficult for her to refuse calls for including one as part of the next Scottish Referendum. There is still an outside chance of a confirmatory Brexit vote actually occurring after October 31st which would establish a rock solid precedent.

By far the most important reason of all for Remain in the UK to lobby hard for a confirmatory vote is that it raises the bar of electoral scrutiny so high that there is next to no chance of a unicorn economic case outlined in a white paper being able to stand up to the intense examination of a referendum campaign and remain intact at sign off. After all the SNP’s Growth Commission which was given the brief of outlining the best economic case for an independent Scotland took 3 years to report back its findings and three days for a layman to dismantle them. A dismantling of such forensic filleting that its findings have been endorsed by a slew of economists. 

In conclusion, a confirmatory vote makes campaigning for a supermajority moot as it kills the concept of achieving independence by means of a referendum stone dead due to the Nationalists having an inherently weak economic case.

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25 thoughts on “Remain in the UK has to campaign for a confirmatory vote

  1. How is there a discrepancy in voting ? That sort of talk angers me , Scotland as England , Northern Ireland and Wales are not the EU member country of the EU , the United Kingdom is. The EU has us all in the European Union as regions including for voting , were the EUs Scotland region gives us 6 MEPs.

    Are you saying a vote in Glasgow has more value than a vote in Belfast , Cardiff or York? Are you saying we are accepting the SNP rhetoric of taken out against our will ? Really ! How anti democratic is that? The SNP and Lib Dems and now Labour have just about killed off democracy.

    What about the discrepancy that 63%of Scot’s at the last election voted pro UK parties , that is a majority I believe in every constituency in Scotland , are the MPs particularly SNP ones working for all their constituents or just the minority ?

    As for a future vote in a generations time , it is of course should be leave / remain the UK option and the nationalist’s should be asked if that includes no deal , they should be called out on the tariff’s that would cost the 60% of our trade with our biggest trade partner the UK.

    There also should be a commission set up using the Fraser Allander Institute and other respected economists checking the veracity of SNP claims.

    At the end of the day we need truth and honesty and the SNP lack that as does the Scottish media who are lightweights and are to scared to ask the hard questions , 2021 will be pivotal and we must vote tactically if the union is to get a majority.

    1. I know the EU vote was a UK one, My first sentence is a paraphrase of the Nationalist rationale for grievance, We seem to be singing from the same hymnsheet apart from that

    2. I haven’t read so much tosh in a long time. Thanks for giving me a smile at the end of a hard day’s work.

  2. It is not a ‘discrepancy ‘ it is a democratic expression of the divergence between Scotland and England. You construct an argument that boils down to ‘hold on to nurse for fear of something worse’. Every other week there is another reminder of just why I left the Labour Party. Thanks for this.

    1. Hi John, As you know very well the EU Ref was a UK wide vote which accommodates the expression of democratic differences beteween participant nations.

      You seem to be hinting at Scots being too scared to vote for independence? If you mean by being too scared – acknowledging that the SNP has not put in place a coherent plan to reduce – its £12.6 billion fiscal deficit – or to replace the fiscal transfer that would disappear; or to pay back the £120 billion share of UK debt; or where they are going to find the £40 billion start up costs that a new country would need. Yes indeed John quite frankly it petrifies the living daylights out of me and fortunately the majority of people in Scotland too.

      1. I am hinting at nothing other than Labour in Scotland’s prolonged and profoundly depressing failure to make a positive case for Scotland ‘s place in the United Kingdom. I can see the slogan now: Vote Labour. Do you think it’s bad now, it could be much worse.
        The ‘discrepancy ‘ reference is exactly the nonsense that I hated in 2014 and have no time for now. We are in an abusive relationship with a self-destructive, nihilistic England and your only concern is dismantling any arguments for independrnce, not creating positive grounds to stay. 2014 all over again.

        1. The positive arguments are quite straight forward. We are part of a single market, we are in a currency union – both these factors mean that we can trade freely with our biggest market (not the EU) the rUK tariff free. You John and your family receive £2000 more than the rUK for being part of the UK. If their are 4 people in your family John your family will be £8000 worse off every year, But I suspect you already know the many many positive reasons for staying in the UK.

          Give me one – just one – economic benefit from being Independent? .

          1. A much smaller “single market” and a much smaller currency union which leaves us overly dependent on one “trading partner” (an incestuous one at that) that is itself a weakness that needs addressed.

            Independence would allow us to address that economic weakness as it did for Ireland. They were once dependent on the UK for over 50% of their trade but independence and EU membership has seen that fall to around 10%. A much healthier, diverse and prosperous arrangement.

            That won’t be possible for Scotland under the Union.

          2. How about tariff free trade with the EU? How about being able to make economic decisions as an independent nation that are not disproportionately weighted to the South east? If Brexit goes ahead, we are going to suffer significant economic, cultural, social and political damage. If an independent Scotland can join the EU, then freedom of movement and all the other benefits of EU membership are open to Scotland.Those are benefits that England and Wales voted to spurn. I campaigned to Remain.
            Labour neither speaks to nor for me at local level, at Holyrood or at Westminster. If economic harm I neither sought nor voted for is to be inflicted upon Scotland, then I would rather begin preparations for a future looking outward to Europe.
            I know that independence is unthinkable to you. A future relying on Labour Party that is reduced to a sect obsessing over studenty identity politics and utopian radicalism on the one wing and on the other cursing those like me (who Labour no longer represents) for seeking another way, while the post war settlement is reduced to rubble by a permanent reactionary Conservative government-is equally unthinkable to me. Failing independence, then I can get my children Irish passports.
            Of one thing you should be certain however, and that is that I will never vote Labour again. No matter how illogical it may seem to you, I, like many former and indeed current Labour members in Scotland (40% according to some estimates) see independence as a lifeboat to escape a Rump UK in thrall to Brexit.

  3. Hello Robert – a very interesting article here, well researched and an enjoyable read. I am sorry that my response is a bit iffy here but I am not at home at the moment so this has to be quick and off-the-cuff. As you would expect I do not agree with you on almost all of what is written (although I enjoyed it) as it undermines part of what I regard to be a major feature of democracy ie. that every vote has equal weight. 50% + 1 is a majority anything else destroys that basic principle. Perhaps that is why there has been no clamour from any party about the structure of the next referendum, perhaps they too recognise this basic principle. We can all find reasons to uphold ways to undermine basic democratic rights – making people ineligible to vote, creating the need for a super-majority or confirmatory referenda – anything can do. Democracy has to be ‘every vote has equal weight’. You hold a referendum and you swallow the result.

    If there is another referendum on Scottish independence and Yes wins then so be it. At that point we will have voted to become independent. Perhaps a constitutional convention, a cross party group, or general election with each party’s vision for independence or even parties standing for election promising to ignore the findings of the referendum is the way forward but not – definitely not – a confirmatory referendum as that is in practice and philosophically undemocratic. You hold a referendum and you swallow the result.

    It is the same with Brexit, the UK voted to leave so it has to leave. Scotland and NI voted to stay so what to do? Its is okay to say it was a UK wide referendum as it was but, it was(arguably) flawed, a partial undemocratic referendum as it took no account of the constitutional make up of the UK with the voice of nations within the UK being swamped by the views of the majority partner nation. It did not have to be like that. I believe that Denmark allows for different regions of the country to have different relations with the EU Scotland and NI could have been given some accommodation. It is a mess and one that should have been examined before the referendum took place but, we are where we are.

    To me, in the context of the future of Scotland it does fall under the heading of ‘a material change’ and does conflict with what we were told during the first independence referendum about ‘our continuing EU membership’ and therefor in my opinion does legitimise a second independence referendum. I know that others will differ in their assessment of that but, this is how I feel. I personally have friends who voted No to independence specifically in order to remain in the EU. Still, here we are.

    You give a good background to underpin your argument but (and this is something I always ask) why should I listen to groups such as the Independent Commission On Referendums – who creates these bodies? I didn’t ask for it. There are many research groups and think tanks out there whose only reason to exist is to shape or create the agenda, to publish articles and often exist in order to bring in income to university faculties (A professor can be promoted primarily on the basis of research achievements and external grant-raising success). Prof. Meg Russell, the Director of the Constitution Unit, may well have applied her statement to any future Scottish referendum, but who is she to tell me anything? I don’t vote for her or for any of these people in the committee – none of whom have any idea of living in a scheme or working on a zero hours contract. Sirs, Rt Revs., Rt Hons., Doctors, CBEs, professors – cripes can’t ordinary people have a view on things that matter to them?

    I expect the SNP to continue to argue for independence as that is their raison d’être- in a democracy there is nothing wrong in that. I only wish that Labour had stuck to its raison d’être rather than fall to Blairite neo-liberalism and then the utter shambles we see now. I do wish they could realise – and you also – the historic moment we are living in, and I do not refer here to independence directly but to the fact that ordinary working class or underclass people are becoming invisible and their concerns ignored or invalidated. We need hope and presently, Labour doesn’t offer me that – only independence touches it.

  4. The vote if we get one should be like last time yes or no easy to understand .
    I don’t buy the we are being dragged out argument but you cant get away from the fact Scotland did not vote for Leave .
    I am in the Labour Party in 14 I campaigned and voted for remain if yes had won I would have accepted it .And done my best to make it work .
    At the EU ref I voted remain for me Brexit was a disaster and even the thought of Yellowhammer proves it .
    It was supposed to be so easy .No where at any time did I see any politician saying we would need to even plan for something on the scale of Yellowhammer .
    Yellowhammer scares me and I know its a worst case scenario .
    But were we told we would even need to plan for it .
    Irish backstop last night on tv the DUP were on .Complaining that the views of the unionist population were being ignored .
    Boris has not ignored them neither did PM May they need them to stay in power .
    Because of Brexlt if we get another indy ref I will vote for indy .
    Can we afford to sit and watch the most reactionary right wing Government any one has seen take an axe to our employment laws Benefit rules justice system etc .
    The leader of Plymouth council has just told ch4 news his port is not ready in any way shape or form for Brexit
    His port officials and the lorry drivers are not trained in the new paperwork .
    He can get no answers from Whitehall they are in chaos .
    The week before the vote I thought Scotland might vote leave after I overheard someone say look at them Polish guys over here doing our jobs .
    It was roadworks when I intervened I was turned on its happened another twice since .
    Ch 4 news again Police Scotland are preparing for large scale civil unrest and Brexit related riots .
    An indy vote people are not stupid it will come down to do we want to do it .
    Should we can I afford it can Scotland afford it can we stand alone without the EU because we will be out by then .
    How will England react to an Indy Scotland badly I think just think of setting up a Scottish backstop .
    Me I will vote yes at an Indy Ref no confirmatory vote needed .
    That’s if or when Nicola organizes an indy vote .
    Or maybe America first will buy us out first

    1. David, The Electoral Commission decided that Yes gave the separatists a 2% advantage hence they ruled that it was unfair. You also say it ”should be like last time yes or no easy to understand” To paraphrase John Swinney you appear to be suggesting that Scots are too stupid or too glaikit to understand that Yes means Leave UK and NO means Remain in the UK.

      I am concerned that you would still want to vote for independence without a confirmatory vote. You do know that there is no economic scenario offered by the SNP for independence which does not involve eye watering austerity and slashing public services to the bone. Now I don’t know if you would put up with that providing you were free from the rUK. Do you not think that the rest of those pople who voted for indy thinking that they at least would not be worse off would want another vote?

      1. Hello Robert – can you give me a link to somewhere that reports the Electoral Commission gave Yes the 2% advantage please? I have looked for it on the web but I cannot find it. I won’t hide that obviously I want to find the source to try to test the veracity of the report and if EC did say this then to see their methodology behind this finding. No matter what the case may be I would then logically have to question the expertise of the EC to have a hand in any matter to do with any future question as I find it difficult to understand how the Electoral Commission made such a mess of their job in the first instance as it was their intervention that changed the question to “Should Scotland be an independent country?” for the 2014 referendum.

        1. Hmm. Surely they changed it from

          Do you agree Scotland should be an independent country? Yes | No

          to

          Should Scotland be an independent country? Yes | No

          in other words they didn’t change the Yes/No part at all, and that’s the part that’s under question?

          1. Hello Duncan – you are correct! However, if you recall the ‘debate’ at the time was about lack of context and how that affects a Yes/No answer. Subtle but, for an advantage not unimportant. And still the test is about EC competence over the neutrality of the Yes/No issue. I contend (albeit stretching-ly I admit ) that this calls into question their expertise to judge. In fairness, I am on one side of the fence and you might be – and Robert is – on the other so we will see this differently.

        2. Hi Wynn, Glad you enjoyed reading my article. A fair point about the electoral advantage primary source. I have been on the EC site and had a look for it but I can’t find it either which of course does not mean that it doesn’t exist, just that I cant find it. However, I would say that the very reason that the EC KOd the EU referendum use of Yes / No as not being neutrlal, advocating the change to Remain / Leave instead would indicate electoral advantage to the Yes/Leave side.

  5. Gers report something for everyone as a rangers supporter I am always happy haha

  6. Read this
    The CH4 news boss used her Edinburgh Festival MacTaggart lecture she said Boris and Jeremy are cowards Frit .New PM who has not given one major press conference or TV interview since he came to power .
    And a leader of the opposition who similarly fails to give major interviews on terrestrial tv
    She said the Cowardy cats in the Tory Party may stop junior ministers appearing on the Today programme
    What are they going to do at a General election little proper democratic debate and scrutiny to enable voters to make informed decisions

  7. Robert, where to start?
    50%+1 is an international norm—somewhat better than the disgraceful Labour 40% rule, where the dead got a say.
    Turnout threshold you say? But then state “unauthorised referendum”.
    Unauthorised by whom? ——–McDonnells “English Parliament” or perhaps what Boris called the “England Parliament”? If it’s them, that is colonialism.
    I googled your ICORs twice, in different formats, with no hits, so doubt their import.
    Anyway, confirmatory vote. Why is it British Nationalists always insist Scotland ” must be different”? Why won’t one vote be enough, if fairly adjudicated?
    Will confirmatory votes also apply to the NO side? Just wondered why we don’t have Browns “Home Rule or Federalism”. Or Darlings “Devo Max”? From 2014. Perhaps we need a confirmatory vote on their false promises. No?

  8. Robert, you assert with no evidence, the Electoral Commission want a Leave /Remain on the ballot.
    That would be absurd. Scots would have to vote ‘Leave’ to JOIN the world.

    Scots would have ‘Remain’ at the very time as the UK is scheduled to LEAVE the EU.

    The simplest question/answer is ALWAYS the best to prevent confusion.

    That means YES/NO—— even a Brit Nat should agree to that!

  9. Robert the reason I am looking at yes if and its a big if we get another ref is because of Brexit just look at the planning for no deal .
    The only reason my medical equipment is secure after Brexit is because the company who have the service contract from the NHS have been stockpiling .
    No I don’t want the growth commission and no I don’t want Boris either .
    I still say yes or no is easy to understand .
    To get a confirmatory vote you have to have a first vote .
    And that would have to be made clear during a campaign .
    And the name calling by everyone like separatist or Brit Nat or Unionist needs to stop .

  10. Hi David, A confirmatory vote would be made clear in a white paper b4 1st vote.

    I agree that the name calling has got to stop it is poisoning the body politic

  11. Thank you for your comment Robert
    Still got to get Nicola to try for that first vote haha

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