The Case for a Threshold at the 'Love the UK Day' Referendum

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Alistair McConnachie makes the case for setting a threshold of 40% at the forthcoming referendum, considers the arguments against, and asks why nobody else is talking about this. Article posted on 4 May 2012.

A startling omission in the debate on the referendum on Scotland's membership of the UK is the discussion of an approval threshold. At the 1979 referendum, those who wanted a Scottish Assembly had to get over 50% of the votes cast on the day, and convince over 40% of the entire electorate. In the event they received 51.6% and 32.9% respectively.

At The Scotsman referendum conference in Edinburgh on 8 March 2012, the Secretary of State for Scotland Michael Moore stated, in response to a question from the floor, that "I haven't heard anyone seriously suggest that a threshold be introduced. It is not something I would support."

But why not?

In Denmark, there is a legal requirement for 40% of the entire electorate to support a change to the constitution before it can pass.

In the aftermath of the 1995 Quebec referendum, the Canadian House of Commons passed the "Clarity Act" which stated that henceforth in such a referendum, it would consider whether "there has been a clear expression of a will by a clear majority of the population of that province that the province cease to be part of Canada." In doing so, it would take into account the size of the majority of valid votes cast in favour of secession; the percentage of eligible voters voting in the referendum; and any other matters or circumstances it considered to be relevant.

The Scottish Government tells us (Your Scotland, Your Referendum 2012 consultation document) that this is "the most important decision in Scotland in 300 years." In that case, it would seem constitutionally appropriate to have a threshold.

Britain, with its famously unwritten constitution, is a little hampered when it comes to big constitutional changes like these. We tend to make things up as we go along.

However, Westminster has the moral high ground. Contrary to the impression generated by the anti-Union side, it enjoys greater democratic support in Scotland than Holyrood -- 64% of the Scottish electorate voted in the 2010 General Election, compared to a mere 50% at the Scottish Election in 2011.

Why we Need a Threshold
Westminster has a responsibility to maintain the UK and to prevent others taking advantage of a fluid situation to facilitate a break-up. It has every right to ensure a fair and democratic referendum and to insist on reasonable ground rules, including a threshold.

The obvious advantage of a threshold is that it demands that the advocates of change must demonstrate substantial support. Under the present proposals, if the turnout at the referendum were the same as the Scottish Election in 2011 (50%), and presuming there is only one question, then the anti-Union side could get its way on 25% of the entire electorate, plus 1 [(50% of the vote, divided by 100) x 50% turnout]. In other words, 75% of the Scottish electorate would be living in a new country for which they did not vote.

From a UK perspective, this is astonishing. There can be no other state in the world which can be destroyed by the votes of 1 in 4 of the electorate of one of its constituent parts 1, or around 1 in 48 of its whole. 2

Even if the turnout was the same as the 1997 referendum (60.4%) then only 30% of the entire electorate would get its way, over the remaining 70%.

These figures are not a mandate to destroy the UK. The only way to claim that such a massive constitutional upheaval is supported by most people, would be if there were a requirement for an absolute majority. That is, 50% of the entire electorate, plus one voter.

In that case, if the turnout was, as Scottishly-usual, a little over 50%, then virtually 100% would need to vote for separation. If the turnout was 60%, then the separatists would need 83.4% of the vote on the day [(50% threshold, divided by 60% turnout) x 100]. At a turnout of 70%, they would need 71.4%, and at 80% they would need 62.5% to support the break-up of Britain.

Democratically, all that makes good sense, but politically, it is possibly a non-starter due to historically low levels of voter participation. Hence the 40% rule which seems even more reasonable. In that case, on a 60% turnout, those advocating the change would need two thirds of people to vote for separation [(40% threshold, divided by 60% turnout) x 100]. On a turnout of 70%, they would need 57%, and at 80% they would need 50%. 3

In Your Scotland, Your Referendum, the Scottish Government dismissed the idea of a threshold (paras 1.21 and 1.22), drawing attention to the 2006 Venice Commission's Code of Good Practice on Referendums, which advises against them.

Your Scotland, Your Referendum goes on, in the very next paragraph, to make its claim that this is "the most important decision in Scotland in 300 years." Not important enough, it seems, to require significant electorate support.

Arguments against a Threshold
There are only two arguments of substance against a threshold. Firstly, it may cause political problems when the advocates have gained a majority, but failed to pass the line. Secondly, the registration of the electorate may become a political football. That is, it will be in the interests of those advocating the change to disagree with the official registration figure, from which the 40% figure is calculated, in order to give themselves an exploitable grievance after the event. 4

There is a third argument against a threshold, which states that an abstention is counted effectively as a "No" vote. That is an absurd objection because nobody uses it at any other time. It is like saying, at any other election, "If you abstain, you are effectively voting for the Party X candidate because by not voting against him, you risk letting him win." That may well be so, but it is really an argument to get out and vote. It is really an argument to increase the turnout - which is a good thing.

In Summary:

  • Democratically, setting a threshold is perfectly fair. It is something everyone can instinctively understand.

  • It demands a greater level of public engagement with the process. It is likely to boost turnout because it requires more people to vote, and that can only be a good thing.

  • It is constitutionally appropriate and reasonable given the importance of the matter. It is legally-accepted internationally that it is possible to set a higher threshold for such nation-changing constitutional events. We also have the 1979 historical precedent for this in the United Kingdom.

  • It protects against the social, political and physical dangers of a majority of people ending up living in a country which they did not want.

  • And the anti-UK crowd cannot argue against it, unless they disagree with the democratic principle that a clear majority should agree with their plans.

All that seems quite reasonable. So why is it not on the table?

(1) Total Constituency electorate in Scotland as of December 2010 - 3,985,161 (including domiciled EU citizens),

(2) The entire British electorate on 1 December 2010 was 45,844,691 (which doesn't include domiciled EU citizens),

(3) As a related example, at the 1979 Scottish Assembly referendum, 1,230,937 (51.6%) voted for an Assembly, against 1,153,500 (48.4%). The turnout was 2,384,437 (63.8%). This meant the pro-Assembly side would have needed [(40% threshold, divided by 63.8% turnout) x 100] 62.7% to vote for their proposal on the day. In the event they got 51.6% of people to do so, falling short by 11.1% on the day.

(4) In that regard, the nationalists always like to claim that in the 1979 poll, "dead people were allowed to vote". At every election there are people on the electoral role who have since died. Therefore, what they mean is that because there was a requirement that 40% of the electorate had to vote, then there would be people on the electoral roll who were dead but who were counted as part of that 40%.

Therefore, say the number of dead on the roll was 1% (and we have no idea what the exact figure was - although it would be very few, and perhaps less than 1%) then the nats will argue that the threshold was artificially high and should have been 39% instead.

In the event, they got 32.9% of the electorate to vote for them. Well, it is certain that there was not 7.1% of the electoral roll who were dead! Moreover, they are also implying in their complaint that all the dead people were nationalists who would have voted for them! It is just another one of their silly grievances that they like to nurse and make a childish fuss over.

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