The People have Spoken

Voters resident in Scotland were able to vote in September on the referendum question, “Should Scotland be an Independent Country?”  The salience of the issue and a high level of engagement with it were attested to by an exceptional 84.6% turnout.  Those voting answered “No”, by 55.3% to 44.7%.

Although the result ensured that Scotland will continue to form an integral part of the United Kingdom of Great Britain and Northern Ireland, at least for a while, it does not mean a return to business as usual.  The “Better Together” campaign, which was the flag-bearer for “No” proponents, sought to influence voters with the inducement that, if independence were rejected, there would be greater powers for the Scottish Parliament and Government, going beyond those contained in the Scotland Acts 1998 and 2012.  In the final week of the campaign, notwithstanding that some people had already voted (by post), the promise was firmed up into a “pledge” signed by the leaders of the three biggest political parties at Westminster (Conservative, Labour and Liberal Democrat).  There was even a timetable announced, rather oddly, by a backbench Labour MP (the former Prime Minister, Mr Gordon Brown, emerging from relative seclusion to deliver a few brainstorming speeches in the last days of the campaign). gbrown

One wonders whether the timetable will slip, but in any event the resultant legislation was not envisaged to be passed before the UK general election in May 2015.  In the meantime, common ground will be sought so as to take Scotland yet closer to “home rule” in a further attempt to assuage aspirations towards separatism that may or may not succeed.  In the meantime also, the constitutional implications for England and other parts of the UK should be addressed more seriously and more systematically than they have been so far, although common ground in this enterprise is much harder to find. yesno

Beyond the subject of devolution, students of Public Law should be interested in the referendum as an exercise in what is termed “direct democracy”, as contrasted with the representative democracy on which the British constitution generally relies.

At an earlier period, referendums were viewed with some suspicion in Britain, partly on account of their use by despots and dictators such as Hitler and Mussolini.  For Clement Attlee, who had been Prime Minister from 1945 to 1951, they were “alien to all our traditions” (As It Happened (1954), p 137).

However, those traditions have been modified and what was perceived as alien may now be viewed as fairly commonplace.  United Kingdom-wide referendums have been held on two occasions (in 1975, on continued EC membership, and in 2011, on the electoral system for the House of Commons.)  In addition, there have been ten others on constitutional issues affecting nations or regions (Northern Ireland, Wales, Scotland, Greater London and N.E. England), on top of local referendums on mayoral arrangements and other matters.  There is provision for referendums to be triggered in certain circumstances under the European Union Act 2011, and the Conservatives intend to hold in 2017 an “In/Out” referendum on EU membership, if they form the Government after the next general election (their attempts to enshrine the intention in law have not been successful so far, but would in any event be constitutionally illiterate, in view of the sovereignty of Parliament).

Mr David Cameron’s prospective promise can be claimed to subject to a democratic check what has often appeared to be an elite project of European integration.  However, the policy is not untainted by political expediency and party motives, any more than was Mr Harold Wilson’s use of the referendum in 1975, with which there are some parallels.  These uses bear out the comment about referendums from the  Constitution Committee of the House of Lords, in its Twelfth Report of 2009-10, that in Britain “they have taken place on an ad hoc basis, frequently as a tactical device rather than on the basis of constitutional principle” (para 205).

Referendums do seem to be habit forming.  However, in Britain where their use is never mandatory, in the sense of being constitutionally required, and never legally binding, since Parliament retains the power to legislate as it chooses, there will always be questions to ask about the causes, conditions, and consequences of referendums being held.  That said, it may be granted that the referendum process is probably most justifiably employed on issues that are both constitutional and fundamental.

(7th October 2014)

This blog post was written by Colin Munro, Emeritus Professor of Constitutional Law, University of Edinburgh, who regularly teaches on the Laws Study Support sessions.

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