Robert Hoskins follows up last week’s article about the impact of Brexit on a future indyref2 with a closer look at what the inclusion of a confirmatory vote – as recommended by independent experts – could mean for the debate.

My article Has Brexit blown indyref2 out of the water? argued in favour of a confirmatory vote on any future independence referendum in light of the current Brexit debate. 

What I didn’t know at the time of writing, and what I do know now as a result of sending it to the House of Commons Public Administration and Constitutional Affairs Committee (HCPACAC), is that the ‘recommendations’ section of the report of the Independent Commission on Referendums which was sent to me clearly states that any future secession referendums should include an optional confirmatory vote.

Here is the recommendation:

In cases where a government does produce a White Paper detailing what form of change it expects to secure, the second referendum would be triggered only in the event that there is a ‘material adverse change’ in circumstances: that is, if the expectations set out in the government’s paper are not fulfilled. It would be for the parliament or assembly that called the referendum to determine whether such a ‘material adverse change’ had occurred.

The process to be followed should be specified in the legislation enabling the first referendum, so that the requirement for or possibility of a second referendum, and the reason for it, is clear to the electorate before the first vote takes place. The Commission’s recommendation hence applies to future processes of change requiring a referendum, and is not intended to apply retrospectively. The Commission does not take a view on whether there should be a further referendum on Brexit.

The Independent Commission on Referendums, 2018

To clear up any confusion, the term ”second referendum” highlighted in the recommendation above means a confirmatory referendum (second vote of a two vote package). The option of triggering a confirmatory referendum would be included as part of a two referendum package which would be clearly outlined in a White Paper which would be sent to every household, like the Scotland’s Future white paper was in advance of the 2014 Scottish independence referendum. This White Paper would make it clear to the electorate in advance of the first vote that the parliament which called the referendum would also have the right to trigger a second confirmatory vote if they chose to do so. The parliament would do this if they believed there had been a ‘material adverse change’ in circumstances between what was promised in the initial white paper pitched before the first vote and what was agreed to in law after it.

The report has no legal status and it does not even have an official role as guidance, although governments may well choose to use it to guide their thinking. However, it does provide us with a very strong steer indeed as to the future direction of travel as to where expert academic opinion is coalescing on the subject of a second confirmatory referendum in the UK, especially in light of the current debate around a confirmatory vote in the Brexit referendum.

For those of you who might be reading this and thinking ”Ah – but that recommendation wouldn’t apply to any future independence referendum would it, as it doesn’t specifically mention that in the text.” That is what I thought too until I watched the video of the presentation of the findings of the Independent Commission on Referendums to the HCPACAC. The co-author of the report, Professor Meg Russell, quite clearly cites as an example of the recommendation being put into action that a future Scottish Independence Referendum could include a confirmatory vote as part of the package:

[If the above video does not show inline, please go directly to
https://parliamentlive.tv/Event/Index/9768655c-438b-43fc-90fb-e364d3a32292 and jump to timestamp 10:47:30 to see the evidence given by Prof Russell.]

So what are the implications of a confirmatory vote for any future Scottish independence referendum? Would this recommendation be accepted by the SNP as ”gold standard” practice and be signed off by both Westminster and Holyrood in the form of a second Edinburgh Agreement?

The insertion of a confirmatory vote into any future Scottish referendum would be seen by the nationalists as a double edged sword – and not without considerable risk. They would quite rightly argue that a confirmatory vote would favour the status quo as it would give Westminster a massive incentive to play hardball and give Holyrood the worst separation deal possible, knowing full well that the electorate would rise up and demand that the incumbent nationalist government trigger the confirmatory vote option.

But on the other hand, bearing in mind that the main recruiting sergeant of Scottish nationalism is whipping up grievance against Westminster, strategically the nationalist hierarchy might see this as a gift and go for it. You could see circumstances whereby separatists would use the threat of Westminster giving Scotland the worst possible independence deal imaginable in the run up to the first vote as THE golden grievance. A grievance so powerful because it has such a plausible element of truth about it that supporters of the union could see the potential for beastly Westminster giving poor Scotland a bad deal. In fact it could turn the gripeometer up to defcon grievomax in the nationalists favour and be the main factor for a massive swing securing independence on the first vote.

One of the major problems with Brexit is the discrepancy between what was promised by the Brexiteers before the EU referendum and what is in the process of being offered now. Repeated polling demonstrates that a majority of the UK electorate now favours having a final say on Brexit once the terms of the UK’s departure are known. So the confirmatory vote genie is now well and truly out of the bottle.

Recent events would make it very difficult indeed for a Scottish First Minister to refuse the option of a second vote in a future independence referendum. They would be laid wide open to accusations of hypocrisy of the highest order if they attempted to wriggle out of it having campaigned so vigorously for it in the Brexit debate.

This possible development conjures up so many “What if?”s. What if a Scottish Parliament election fell between the first vote of the referendum and the deal being signed off? What if an SNP government that called the independence referendum lost that election and it was up to a government of a different party to decide if there had been a ”material change” from what was offered compared to what was delivered? If this recommendation is accepted and the next referendum comprises of a two vote package, the implications for indyref2 would be colossal.

A confirmatory vote being included as part of an indyref2 package could completely change the debate of the referendum campaign. The question of what constitutes a ”material change” would be being debated up and down the country. Imagine had this been in place in 2014! “First Minister, would you agree that the price drop of a barrel of Brent crude from $100 to $43 in the space of a year and a half qualifies as a ‘material change’?” “First Minister, would the exit southwards of Scotland’s entire banking industry constitute a ‘material change’?” “First Minister, considering that the NHS costs £13 billion per year to run, do you consider the loss of the £12 billion annual fiscal transfer from Westminster as a ‘material change’?”

The fundamental effect of including a confirmatory vote in a future independence referendum would be a huge positive for the people of Scotland charged with making the decision – the pro-independence side would have to produce a robust, watertight economic case which relied on logic not faith. The case for separation would have to be capable of being held to account.

The SNP’s Growth Commission Report, which sets out to create an overarching national economic strategy for independence spelling out what the nuts and bolts of an independent Scotland’s economic environment would look like, was released last year. It made recommendations on what currency an independent Scotland would use, who would be the lender of last resort, how long it would take to pay off Scotland’s share of UK’s national debt and so on.

The leadership of the SNP who commissioned the report obviously see this as the best economic case for independence that can be made and are hoping that its findings will be endorsed as party policy at SNP Conference. One would then assume, if indyref2 was called, that the Commission’s recommendations would form the economic case for independence and be included in a referendum white paper. The crucial question here is would the Growth Commission’s economic case for independence stand up to rigorous scrutiny over say a three year period from the first vote to the deal being sealed?

So far the portents of this happening do not look promising, as the economic case for independence contained in the Growth Commission was three years in the making and it took one man who isn’t even an economist three days to dismantle it. His forensic critique, which has been endorsed by a slew of economists, concluded that economic data cited by the Commission could not support the conclusions for economic growth made. The refusal of the author to defend the Commission’s findings in light of this criticism would suggest that these major flaws have more than an element of truth about them.

The most important consequence of all of a confirmatory vote on the next independence referendum is this: it will no longer be possible to make economic promises to the electorate in a white paper without first making damn sure that all those promises are properly costed and can be delivered. 

As far as the electorate is concerned, what’s not to like about a confirmatory vote? It provides them with the vital insurance policy of another democratic opportunity that can be triggered which allows them to potentially change their decision if they feel that major promises made before the first vote fall well short of what has been delivered.

My hunch is that political journalists, and indeed the Scottish body politic, have not yet joined the dots with regards to how potentially game-changing the campaign for a confirmatory Brexit vote would be on any future Indy ref 2. If they had already made these links we would be hearing unionist politicians in Holyrood seizing the opportunity to put the nationalists on the back foot when they next demanded an indyref2 with the question “Would that referendum include a confirmatory vote as set out as best practice by the Report of the Independent Commission on Referendums?” If the answer was anything other than yes the guffaws of laughter and cries of hypocrisy from the opposition benches would not only echo around the chamber but would expose the duplicitous nature of the current SNP position of being four-square behind a confirmatory vote for Brexit but denying the Scottish electorate one for any future indyref.

The Brexit fiasco has galvanised the electorate like the Scottish referendum did in terms of heightening political engagement. But there is a major difference between their current Brexit journey and their 2014 indyref one. We voted no to Scottish independence in 2014, and yes to leaving the EU in 2016. Two completely different electoral journeys. The journey of the Scottish electorate ended abruptly at the ballot box on September 18th 2014, meaning that they did not live through the ensuing chaos which would inevitably have followed as Westminster and Holyrood locked horns trying to agree a settlement.

It is this crucial part of the referendum journey which they didn’t go on in 2014 which they are now experiencing for the very first time which changes the ground rules of the next referendum completely. When nationalist politicians demand a second referendum, what they are really asking for is a replica of  2014 – a one vote package on an untested prospectus. But it could well be that the electorate have learned the lessons of the Brexit experience whereas the constant drone of politicians demanding a second independence referendum have not. The idea of asking the Scottish electorate to participate in a rerun of the same one-vote referendum as in 2014 should be unthinkable.

If, or perhaps when, the above debate eventually takes off in Scotland with regards to the consequences of a confirmatory vote on indyref2, the cries for a second independence referendum might not be so shrill or incessant as they are now. A people empowered to reverse their choice if they discover they have been misled is a basic part of our everyday democracy. Making it part of any future referendum on Scottish independence is the only right and decent thing to do.