Scottish Independence Insta-Symposium: “Devolution Max” and the Question of Referendum Questions

by Christopher K. Connolly

[Christopher K. Connolly is an Assistant United States Attorney, Southern District of New York.  This post is written solely in the author’s personal capacity.  The views expressed in this post are the author’s alone and cannot be attributed in any way to his employer or any branch of the U.S. Government.]

On September 7th, faced with new polls showing a surge in support for Scottish independence, the British government made a pledge to the people of Scotland: vote “No” in this Thursday’s referendum, thereby remaining within the United Kingdom, and more powers will be devolved to Scotland’s parliament.  According to the Chancellor of the Exchequer, George Osborne, if Scots reject independence, they will receive “[m]ore tax-raising powers, much greater fiscal autonomy . . . . More control over public expenditure, more control over welfare rates and a host of other changes.”

Osborne’s offer represents a new development in the run-up to the referendum–one that Scottish National Party (SNP) leader Alex Salmond quickly dismissed as a “panicky measure” brought on by the increased momentum of the pro-independence campaign.  But it’s hardly a new concept.  In essence, the British government is offering some form of “devolution max”–the term typically used to describe scenarios in which Scotland would obtain virtually complete internal autonomy (in particular, robust economic and fiscal powers) while remaining part of the United Kingdom for external purposes such as defense and foreign affairs.  The SNP recognized devolution max as an option for Scotland’s political future (albeit not the SNP’s preferred option) in a 2009 White Paper, and the party’s initial proposals for the upcoming referendum envisioned a ballot containing two questions, the first addressing independence and the second gauging support for devolution max.

But British prime minister David Cameron, confident in his government’s ability to win the referendum and wary of handing Salmond a “consolation prize” in the form of enhanced autonomy, rejected the idea of including two questions and instead insisted on an “up-or-down” vote on independence.  In the Edinburgh Agreement reached in October 2012, which laid the ground rules for the referendum process, the Scottish government agreed to a one-question referendum ballot in exchange for other concessions from Westminster.  Thus, when Scottish voters go to the polls on September 18th, they will be asked a single, straightforward question: “Should Scotland be an independent country?  Yes/No.”

Although the British government’s push for a single referendum question was prompted in large part by political considerations, it also comports with guidance concerning the phrasing of referendum questions provided by legal opinions and state practice.  In its 1975 Western Sahara advisory opinion, the International Court of Justice (ICJ) recognized the general principle that “the application of the right of self-determination requires a free and genuine expression of the will of the peoples concerned” (para. 55).  The Canadian Supreme Court expanded on this concept in its 1998 Quebec Secession Reference.  There, although the court found that Quebec did not possess a unilateral right to secede under either domestic or international law, it nonetheless concluded that “a clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other [Canadian provinces] would have to recognize” (para. 150).  In other words, the democratically expressed will of the people of Quebec to secede would oblige the rump Canadian state to engage with Quebec in negotiations concerning possible separation.  The court emphasized, however, that “[t]he referendum result, if it is to be taken as an expression of the democratic will, must be free of ambiguity both in terms of the question asked and in terms of the support it achieves” (para. 87).

The Canadian Supreme Court’s opinion was followed in 2000 by the Clarity Act, which gave teeth to the court’s view of the need for a clear and unambiguous referendum question.  Among other things, the Act obliges Canada to negotiate with Quebec over the terms of a possible separation only following a referendum that sets forth an unambiguous choice between either full separation or continued inclusion in the Canadian state.  Accordingly, the Act prohibits any “referendum question that envisages other possibilities in addition to the secession of the province from Canada, such as economic or political arrangements with Canada, that obscure a direct expression of the will of the population of that province on whether the province should cease to be part of Canada” (art. 1, para. 4(b)).

The Quebec Secession Reference and the Clarity Act must be understood against the backdrop of Quebec’s 1980 and 1995 referendums on independence.  The questions posed in those referendums were far from clear.  For example, the 1995 referendum question (the shorter of the two) read: “Do you agree that Quebec should become sovereign, after having made a formal offer to Canada for a new economic and political partnership, within the scope of the Bill Respecting the Future of Quebec, and of the agreement signed on June 12, 1995?”  Moreover, the ultimate issue of independence was to a certain extent obscured by debates over “sovereignty-association,” a proposal often made by Quebecois nationalists under which Quebec, though nominally independent, would retain some form of political and economic partnership with the rest of Canada.  The Canadian government sought to ensure that any subsequent referendum would avoid these pitfalls.

Judged by these standards, the Scottish referendum question could not be more clear and straightforward.  Indeed, in language reminiscent of the ICJ and Canadian Supreme Court opinions, the Edinburgh Agreement asserts that the referendum will “deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect.”  But there is room to question whether the simple, single question will best capture the political preferences of the Scottish electorate.  Polls have often shown that many, if not most, Scottish voters prefer neither the status quo nor outright independence–they would support devolution max if that were an option in the referendum.  The British government’s recent pledge to provide Scotland with greater autonomy appears to recognize this sentiment by attempting to turn a “No” vote into a vote for devolution max.  But will it be too little, too late for those who want Scotland to remain within the United Kingdom?  And given the question presented to them, which makes no mention of the possibility of further devolution, are Scottish voters being provided with a clear sense what voting “No” might entail?

Undoubtedly, referendum questions must be framed with clarity to ensure that voters understand the choice that is being presented to them.  But notwithstanding the lessons from Quebec, the Scottish situation raises the question of whether that choice should always be limited to either outright independence or continued inclusion in the state.  A clearly-worded second question concerning devolution max might have captured the wishes of many Scottish voters.  As I’ve argued elsewhere, “the increased autonomy envisioned by that proposal might have been sufficient to satisfy many Scottish nationalists.  By taking the option off the table and making the referendum an all-or-nothing affair, the British government is running the risk that many Scottish voters might instead opt for independence” (p. 102).  David Cameron’s single question, though admirably clear and unambiguous, has started to look like a political gamble.  It remains to be seen whether it will pay off.

http://opiniojuris.org/2014/09/17/scottish-independence-insta-symposium-devolution-max-question-referendum-questions/

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