The country is learning hard lessons about direct democracy from the Brexit process. Robert Hoskins argues that those lessons should fundamentally alter Scotland’s attitude to any proposed second independence referendum.

The ferocious energy unleashed by Hurricane Brexit still dominates our political discourse two years on and shows no signs of blowing itself out. Its awesome destructiveness has trashed the UK body politic including the Conservative Party, and has left in its wake a country which both the CBI and TUC say is in a ”state of national emergency”. Leaving the EU without a deal is now an increasingly likely prospect.

I have read so many different analyses which have attempted to explain how answering a simple constitutional question could cause so much collateral damage to our democratic system. The most popular of these narratives include: the discrepancy between the Leave result and the Remain majority in the House of Commons; the utter uselessness of the Prime Minister who did not have the requisite skill set to deliver it; and the PM pandering to the ideological extremism of the hard-line European Research Group. Although all these ideas have resonated with the public as plausible explanations to account for the current chaos, there has been little debate or critical analysis about the important part played by the terms of the referendum itself, which after all was the midwife which delivered this chaos in the first place.

The closeness of the result and the subsequent clamour for a people’s vote begs the question as to how fit for purpose is a first past the post referendum, with no built in super majority threshold or confirmatory vote, to decide matters of such crucial importance as secession of the UK from the EU, or indeed secession of Scotland from the rest of the UK?

I am not arguing that a referendum should never be used for constitutional change. Take Scottish independence for example. If we are saying that having a majority of SNP MPs at Westminster or a majority of SNP MSPs at Holyrood does not create a mandate for independence, what other legitimate means is there left for nationalists to campaign to secede from the UK other that by means of a referendum?  What I am saying is that the method implemented in the last two referendums needs urgently reviewed. The Brexit fiasco has exposed major weaknesses in the referendum process in ways which the Scottish referendum didn’t do because we voted for the status quo – to remain part of the UK.

There are in my view four major structural components of the referendum process that need to be re-examined and modified.

1. What percentage constitutes a winning vote in a secession referendum? 

Are we really saying a simple majority of 50%+1, as currently exists, reflects the settled will of the people and is enough to secure a permanent material change in constitutional circumstances such as Scotland leaving the UK or the UK leaving the EU?  A first past the post referendum is no way to settle a crucially important constitutional issue such as secession. It is quite frankly a ridiculous notion which has been partly to blame for the aftermath of rancour, bitterness and division caused by the closeness of the result of the current EU referendum and the Scottish independence referendum (51.9% – 48.1% – 1,269,501 vote majority and 55.3% – 44.7% – 383,937 vote majority respectively).

It is astonishing that the requirement of a supermajority was not factored into the process for both referendums. The most common type of supermajorities include three fifths (60%), two thirds (67%), and three quarters (75%). All are commonly used by institutions to change their rules of engagement.  For example, UK law requires business mergers to gain the agreement of 75% of their shareholders before amalgamation can occur. The recent case at Muirfield, the men only golf club which balloted its members to see if they wished to accept female members, required a two-thirds majority of members to agree to the proposed change before it was accepted.

Guidance for the conduct of the Scottish referendum was contained in the bilateral Edinburgh Agreement and was surprisingly vague with regards to what constituted a fair result. The Edinburgh Agreement promised that the referendum should deliver for the people ”a fair test and a decisive expression of the views of people in Scotland and a result which everyone will respect”. Fifty percent plus one does not by any stretch of the imagination represent ”a decisive expression of the views of the people”. As calls for a second referendum intensify, the Edinburgh Agreement has also quite clearly failed to deliver ”a result which everyone will respect”.  So, where do we go from here?

Nigel Smith, the former chair of the campaign that delivered the Scottish Parliament, has attempted to address this major flaw by arguing that in future Westminster should adopt a supermajority threshold of 55% for any successful Yes vote.  The 55% threshold also has a political precedent as it was used in the 2006 Montenegrin independence referendum which was narrowly passed by 55.5% of votes cast. My own preference would be to plump for the supermajority threshold that the First Minister used to favour – that of at least 60% which she indicated would trigger a demand for a 2nd referendum. That figure, if achieved in a 2nd independence referendum, would be seen as a legitimate mandate which reflected the settled will of the Scottish people by both winners and more importantly losers too.

2. What should the turnout threshold be in a secession referendum?

It is also a long-standing principle that a secession referendum requires to meet a stipulated turnout of well over 50% to be seen as a legitimate vote. This has not been an issue with the Scottish referendum which had a turnout of 85%, or the EU referendum (73%), but it could be a matter of concern for any future secession referendum. Those of us of a certain vintage will remember the 1979 Scottish devolution referendum which delivered a 51.6% Yes vote but which failed to meet the controversial Cunningham amendment which stated that the Yes vote had also to meet a critical threshold of 40% of the total electorate eligible to vote to be seen as legitimate.

3. Should there be a confirmatory referendum following an initial vote for secession? 

The whole Brexit journey has been a massive learning experience for the UK electorate because, unlike the Scottish referendum, Brexit will be the first referendum ever that has enabled us to compare what the winning side was offering on polling day with the final ‘deal’ that is being negotiated on our behalf. Ironically two years on we still don’t know what the deal is. But what we do already know for certain is that, no matter what the final exit deal is – staying in a customs union, creating a Norway plus or Canada plus settlement, or leaving on WTO rules – it was not specified before we voted. We also know that what was specified before we voted won;t be delivered; even Nigel Farage has stated that there won’t be an extra £350 million per week going into the NHS.

Brexit has demonstrated, in ways which the Scottish referendum didn’t (because we voted to remain in the UK), that any future referendum on Scottish independence must now include a confirmatory referendum after the departure deal has been sealed. I would go further and say that one of the many unintended consequences of Hurricane Brexit is that it surely has blown the concept of a one-off referendum out of the water and rendered it obsolete.

For those who are not convinced about the need for a confirmatory referendum let’s look at just one of the stark economic consequences of NOT having a confirmatory referendum had there been a majority for Yes in 2014.

Let’s use the 18 month time line from the referendum vote itself to independence day March 24th 2016, which the Yes prospectus, ‘Scotland’s Future’, specified would be long enough to break up our 312 year old union. Let’s really stretch our imaginations and pretend that the final deal between Scotland and the rest of the UK actually had been negotiated and signed off on March 24th 2016. Let’s also make March 24th 2016 the day we had our confirmatory referendum vote, enabling us to compare what ‘Scotland’s Future’ promised to what was actually going to be delivered.

Before September 18th 2014, the price of a barrel of Brent crude oil was around $100. The economics underpinning the Yes prospectus were predicated on a barrel of Brent crude being $113. By March 2016 the average price of a barrel of oil had dropped dramatically to $43, which would have left an independent Scottish economy in crisis and its people experiencing eye watering austerity for generations to come. Useful information to know in advance of a confirmatory vote, as would be the financial impact on taxes and welfare cuts resulting from the loss of the annual £12 billion fiscal transfer from Westminster. Surely the electorate would have been entitled to know in advance before they sealed the deal on independence which of their taxes would have to be increased and by how much and which of their welfare services would be slashed and to what extent to pay for the economic catastrophe that would have awaited the first day of an independent Scotland?

A confirmatory vote would have also enabled the electorate to match up the promise made by the Nationalists of minimal capital flight out of Scotland as a result of a Yes vote to the reality. The recent SNP Growth Commission has given us a glimpse as to what that reality would look like in the event of any future Yes vote. To their credit the Growth Commission stated that there would be a collapse of Scotland’s finance sector worth £15 billion to Scotland’s economy as its banking industry migrated lock, stock and barrel down south before independence day.

A confirmatory vote would also have enabled the electorate to compare the claim made by Alex Salmond that Scotland would continue to use the pound to the actuality on the day of the vote, which would have had a major impact on pensions and mortgage payments. And a follow up vote on the deal would have allowed the electorate to pass judgement on the many questions that were not answered during the referendum campaign, such as how much of the UK’s £1.7 trillion debt Scotland would agree to accept, and how much interest a ‘new’ country without any credit history would be charged to service that debt. We would also have hopefully known who our lender of last resort would have been.

4. Should there be a recommendation made with regards to how often one can call a secession referendum on the same topic?

The implementation of a confirmatory vote would make point 4 moot, as a successful confirmatory vote would in itself have legitimacy as the majority would have been seen to be in favour of the settlement.  However, as things currently stand there are no guidelines as to how often you can go back to the same electorate with the same constitutional question. In the case of Scotland the case for Yes stated that the vote would be ”once in a generation”, but that did not stop an SNP-led Scottish Government passing legislation for a second referendum less than three years later. The lack of guidance on this point means that the losing side in any secession referendum can keep coming back in a ‘Neverendum’ until they get the result they want, which is an abuse both of the referendum construct and of the electorate.

Select committees for constitutional affairs in the House of Commons and the House of Lords now need as a matter of urgency to conduct a joint inquiry into the lessons learned from the EU and Scottish referendums and make gold standard recommendations for future practice.

The Brexit experience has changed public perception forever about how secession referendums should be structured in the future.  The yawning chasm which exists between what Leave promised before the referendum compared to what is in the process of being delivered will be a game changer as to how referendums are constructed in the future. I would suggest that the people of Scotland would be in up uproar if there was any attempt at running a second independence referendum without, at the very least, a confirmatory vote being part of the referendum package. Those supporters of a second independence referendum who assume it would be an exact replica of the first have failed to understand the true impact of Brexit on all of our futures.