Scotland Post-Referendum: the paradoxical model

von Melanie Sully, 26.03.2015

The referendum on Scottish independence has been cited as an exemplary model for a modern participative democracy. Undeniably the conduct and the preparation for the vote exceeded all expectations. Given the emotional nature of the topic and the momentous consequences a “Yes” vote would have had, the process was civilised, peaceful and, apart from a few fouls, orderly. The result was recognised by both sides, something made easier by the 10% difference between the advocates and opponents of independence. This had much to do with the centuries-old experience of democracy and deep roots of parliamentarism. Such a vote in a country with a fragmented political culture could tear it apart. The fact that even the UK struggled to avoid such fratricide testifies to the potential dangers.

Post-Referendum Uncertainty

Despite this, the sudden appearance of a so-called “Vow” made by leaders of the government and the Labour party in the closing moments before the poll, scattered uncertainty and an element of chaos in the long-term. This will ultimately prove a greater test for British democracy than the referendum day.

In an effort to save the UK from break-up both leaders of the coalition Cameron and Clegg flanked by Ed Miliband of the Labour Party deserted parliament, where the weekly Prime Ministers Question time should take place, for Scotland an unprecedented snub for British parliamentary democracy. The Vow to pledge more decentralisation to Scotland in the event of a rejection of independence was made via the media, a regional tabloid newspaper. The timetable for implementation was announced by Gordon Brown former Labour prime minister and not by a member of Her Majestys Government or Opposition front bench. The announcements were vague in nature and lacking any prior consultation normally associated with citizen engagement either in Scotland or noticeably in the rest of the United Kingdom.

What followed after the referendum was a hasty attempt to fulfil the pledge to get the issue out the way and to salvage what trust is left by the people in politics. A broken promise would not have looked good for the credibility of these three parties especially in an election phase. A commission was set up and duly looked at specific points for more decentralisation including greater tax raising powers and at the end of January 2015 draft clauses were presented to parliament. The three leaders could claim they had delivered their promise and could kick the ball into the long grass for a future government to pick up after the May election.

Open Questions

This obvious rushed job leaves many questions open including:

• The lack of pre-legislative scrutiny which might not even take place after the election of what amounts to monumental constitutional change in the United Kingdom
• Ambiguity in the wording of draft clauses which refer to the “permanence” of the Scottish parliament. With no codification of the constitution there is no mechanism recognised which regulates the relationship between the centre and periphery apart from a series of conventions. As a recent parliamentary committee pointed out the issue of parliamentary sovereignty in this instance could be challenged ie that no parliament can bind its successor. With no second chamber, as yet, to represent the interests of the regions the current approach borders on amateurism.
• The whole process of devolution in the UK whether in Scotland, Wales or for London has taken place after popular votes. If the Scots had voted “Yes” for independence then this would have been accepted. Yet the current fulfilment of the “Vow” is going ahead without the normal consultation that such a transfer of power would merit.
• To circumvent such hot topics it is now customary in the UK to talk of using a “super majority” ie a two-thirds majority either in the House of Commons or on the respective devolved legislature. This is a somewhat unusual instrument in British politics which made an appearance in the Fixed Term Parliaments Act regulating the parliamentary term. However it is now being wheeled in without rhyme nor reason for what promises to be major doses of federalism in the country.
• Little thought has been given so far on how to systematise the use of direct democracy, when a referendum should be called or not. There is a European Union Act listing cases when a vote would be necessary eg on the introduction of the Euro or Schengen but at the end of the day the responsible government minister makes the case to parliament.
• One part of the decentralisation package is already being fast-tracked namely the proviso to allow 16 and 17 year olds the possibility to vote in Scottish local and regional elections. Whilst there is consensus on this it has again not gone through extensive consultation and the only justification for the speed is that elections take place to the Scottish parliament next year. In some countries namely Denmark changes in the age of voting go to a vote in a referendum. But in this case there has been little thought given to the proposal which could open the door to changes in other parts of the British Isles. Again it is not that the issue itself is necessarily bad or good but that simply public consultation and adequate citizen engagement, the hallmarks of good governance have been conspicuous by their absence.
• There is little to suggest at the moment that the current devolution package will be put to the people of the United Kingdom for their views in a popular referendum. That is not just the people of Scotland but all those concerned in England, Wales and Northern Ireland making up 85% of the entire population and living in the same Union.

At the moment it seems likely that the Scottish National Party will send a large contingent down to London to the Westminster parliament and will be in a strong negotiating position. The percentage of support for the party in the country as a whole is relatively small at around 5% and its increase in seat gains comes through the regional concentration of support.

In other words these Members of Parliament will in effect have a say on whether future terms of decentralisation are appropriate for the UK, something which many consider an anomaly.

Sleepwalking to Federalism?

Thus we can conclude that whilst the conduct of the Scottish referendum of 2014 was indeed a model which could be appreciated as best practices, what followed was anything but and requires urgent consideration if the UK would wish to position itself as a good example for citizen participation. So far it has notably failed to comply with consultation guidelines allowing for civil society and others affected by proposed decisions. The object of such consultation should be to influence the passage of legislation. In this case the Vow laid down from the beginning the outcome and sought merely mechanical details for implementation. This lack of systematic rules for the post-referendum phase has initiated the possibility of the UK for better or worse, of sleepwalking to federalism, a concept incidentally which is shrouded by mystery and incomprehension.

Informationen zu Melanie Sully

Prof. Dr. Melanie Sully is Director of the Institute for Go-Governance in Vienna and a British-born political scientist. She was visiting professor at the University of Innsbruck 1988-91 and from 1992 to 2010 was a professor in politics at the Vienna Diplomatic Academy

melanie.sully@go-governance.com

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