Scotland’s First Minister, Nicola Sturgeon, recently announced plans for new rules on referendums and for a citizens’ assembly on Scotland’s constitutional future. Drawing on his recent research, Alan Renwick assesses the proposals. He argues that they are useful first steps towards enhanced democratic practice, and he urges all sides to engage constructively in strengthening them further.

The Scottish Government has recently proposed two important constitutional innovations. First, it has introduced a bill designed to regulate the conduct of any future referendum called by the Scottish Parliament. Second, it has announced a citizens’ assembly to encourage constructive public discussion of Scotland’s constitutional future. Opposition parties may be wary of these proposals, seeing them through the lens of the debate for and against Scottish independence. But the proposals deserve to be assessed on their own merits. Whatever our view of independence, no one can deny that active debate on this question exists. It is in everyone’s interests that that debate be conducted fairly and honestly.

Much of my recent work at the Constitution Unit is relevant to the proposals. In conjunction with the Independent Commission on Referendums and the Council of Europe, I have examined the principles and rules that should shape referendum conduct. In the Citizens’ Assembly on Brexit, my colleagues and I considered how such deliberative institutions can best be designed and operated. My recent report with Michela Palese on Doing Democracy Better explores ways of fostering better information and discussion during referendum campaigns. In what follows, I draw on these projects – as well as the work of the Electoral Commission and others – to assess the Scottish government’s proposals and consider what further steps may need still to be taken.

Referendums Bill – an important step forward…

The Referendums (Scotland) Bill was introduced in the Scottish Parliament by Cabinet Secretary Mike Russell on 28 May. It does not call any referendum. Rather, it is intended to provide the framework for any future referendum that might be called by the Scottish Parliament on any matter. It covers the rules for triggering such a vote, conducting the campaign, and running the poll itself.

The mere fact of establishing a standing framework of referendum rules is a welcome step forward. Scotland currently has no such framework, meaning that all the rules have to be created afresh when a referendum is called. That is in contrast to the UK as a whole, where referendum rules were established by the Political Parties, Elections, and Referendums Act (PPERA) 2000. The danger created by having no standing framework is that the rules can be manipulated by those in power to enhance their chances in a particular vote. Last year’s Independent Commission on Referendums suggested that Scotland might introduce such a law. The change also fits with the principle that basic referendum rules should be settled well before any actual vote. This is enshrined in the Code of Good Practice on Referendums produced by the Council of Europe’s legal wing, the Venice Commission, and was endorsed earlier this year by the Parliamentary Assembly of the Council of Europe.

The bill also improves upon the PPERA framework in several respects. One key point is that it stipulates the referendum franchise. PPERA fails to do that, leaving this crucial element of the rules open to opportunistic tinkering. Another is that it requires greater transparency in online campaigning. PPERA dates from before the social media age. Thus, while it requires printed campaign materials to carry an ‘imprint’ specifying the name and address of their printer and promoter, it makes no equivalent requirement for digital materials. The Electoral Commission has long argued that this gap should be plugged, a view endorsed by the Independent Commission on Referendums. The legislation underpinning the 2014 independence referendum included such a provision, and the new bill repeats that.

… but with room for further improvement

Still, a bill, when introduced, is always a work in progress. As this bill makes its way through the Scottish Parliament, there are several areas that will deserve particular attention.

There are a few points on which the bill constitutes a step back from the PPERA framework. Most importantly, it proposes that Scottish ministers should be able to call a referendum by secondary legislation. A proposal to hold a referendum would thus be set out in a statutory instrument specifying the question, the date of the poll, and other details. This would be subject to some parliamentary scrutiny, though not as much as for primary legislation. Parliament would be able to approve the proposal or reject it, but not to amend it in any way.

This contrasts with the PPERA framework, where a referendum can be triggered only by primary legislation. I am aware of no well-functioning parliamentary democracy that gives ministers blanket authority to call a referendum by secondary legislation. The proposal runs counter to the principles for good referendum design advocated by the Independent Commission on Referendums and the Council of Europe. Both emphasise that the decision to hold a referendum is a big one and ought to be subject to exhaustive scrutiny. The Independent Commission said:

Decisions about when to hold referendums and how to conduct them should be taken with a view to ensuring that extensive opportunities for careful deliberation exist: regarding whether a referendum is the best way forward, what the options should be, and what the strengths and weaknesses of each option are from different perspectives. (p. 68)

Similarly, the Council of Europe said:

proposals put to a referendum should be as clear as possible and subject to detailed prior scrutiny, including by parliament, to ensure that they reflect voters’ concerns and can reasonably be expected to deliver on voters’ wishes (para. 3.2)

Indeed, as I have argued elsewhere, if we have learnt anything from Brexit, it is that a decision to hold a referendum should not be taken lightly. Both Leavers and Remainers agree that the implications of a vote to leave should have been worked through ahead of time: so that voters could know more about the choice they were making and to ensure the government had a clear plan of action. This plan should have been published in advance and scrutinised in depth. Primary legislation offers an opportunity to do that (though not, clearly, one that was taken in the Brexit case).

The bill also falls short of PPERA by proposing to give ministers unusually extensive powers to change the primary legislation via secondary legislation. And it could be clearer in specifying the minimum duration of a referendum campaign.

Elsewhere, the bill largely replicates the PPERA framework. But elements of that framework are widely acknowledged as no longer fit for purpose – particularly in relation to online campaigning, but also on matters such as joint campaigning by multiple organisations, the rules on interventions by public authorities, and the powers of the Electoral Commission to fine campaigners who breach the rules. In respect of online campaigning, while the introduction of digital imprints is welcome, it appears that lessons from the 2014 experiment have not yet been fully learnt. There is also scope to tighten rules on reporting of campaign donations and spending to ensure greater transparency. These are all matters on which the Electoral Commission has argued change is needed. It would help the UK as a whole as well as Scotland if, over the coming months, Scottish ministers and the Commission could work together in drafting detailed solutions.

Scope for democratic innovation

What is perhaps most striking about the bill is its conservatism: for the most part, as already noted, it simply reproduces a UK legislative framework that is almost two decades old. Yet the Scottish Parliament has prided itself since its inception twenty years ago in seeking to build a more open, modern, ambitious democratic culture. It could advance that goal now by adopting a more forward-thinking approach to referendum design.

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. Other possible measures relate to the nature of the campaign. In Doing Democracy Better, Michela Palese and I argue for the development of rich information materials during referendum campaigns to help voters make their choice. These materials should be strictly balanced and rooted in both expert analysis and extensive deliberation by members of the public. Our report explores examples in Ireland, New Zealand, and parts of the United States where elements of this approach already work well.

It is understandable that ministers might be cautious of introducing such innovations in framework legislation: they might prefer first to experiment on a more ad hoc basis. Still, it would be a shame if the opportunity the bill creates for democratic deepening were to pass by unused. One step the bill could take would be to introduce a provision enabling ministers to establish citizens’ assemblies in the context of referendum campaigns to help inform public discussion. There are two main ways of doing this: in Ireland, citizens’ assemblies have been used to help shape the options on the ballot paper; in Oregon, they examine the options that have already been determined, providing an assessment and highlighting points that need further attention. There is good evidence that both approaches can enhance the quality of public discussion. In the context of an independence referendum, they might also help to strengthen the Scottish government’s hand in any post-referendum negotiations with the UK.

The proposed citizens’ assembly

The preceding paragraph takes us close to the citizens’ assembly that the Scottish government has in fact proposed. This will examine the kind of country Scots want to build and the challenges Scotland faces, with a view to elucidating what information people want before making a choice about Scotland’s constitutional future. Further details are yet to be announced, but the creation of the assembly is a welcome step: a forum in which Scots can listen to each other calmly and reflect together on these crucial matters is badly needed. If moves towards another independence referendum continue, we may hope it will be the first of several exercises in citizen deliberation that help to guide each step along the way.

Conclusion

The Scottish government wants not just to win an independence referendum, but also to secure independence itself without the kind of acrimony and chaos that has consumed UK politics since the 2016 referendum on Brexit. That gives it a strong incentive to develop referendum processes that are demonstrably fair and foster informed, constructive dialogue. Whatever our view of independence, we should embrace the opportunity this creates to establish healthy and ambitious democratic practices. The proposals as set out already make valuable steps in that direction. All sides should engage constructively to ensure that their final versions are as positive as possible.

About the author

Alan Renwick is Deputy Director of the Constitution Unit and  has written or co-written three books on voting processes. He is also the co-author of Doing Democracy Better: How Can Information and Discourse in Election and Referendum Campaigns in the UK Be Improved?