Why a referendum on Lords reform is a bad idea

On 23 April 2012, the Joint Select Committee reviewing the Government’s Draft House of Lords Reform Bill released its report.

Real life has not allowed me sufficient time to properly read through the entire report, available here, however I do want to take a few minutes to focus on one recommendation the Committee put forward, and that is the call for a referendum:

87. The Committee recommends that, in view of the significance of the constitutional change brought forward for an elected House of Lords, the Government should submit the decision to a referendum.

Part of me sort of understands why some believe significant constitutional change should be subject to a referendum for the people’s approval, but a larger part of me strongly believes that constitutional change is not at all something that should be put to a popular vote because the issues are simply too complex for most voters to make a well informed choice.

That undoubtedly sounds horribly elitist, and I agree. Doesn’t mean it isn’t true, however.

There is much opposition to Lords reform in the UK, not simply to the proposals put forward by the Government in its draft bill, but to the very fact that the Government is even proceeding with such an initiative. Many – mostly Conservatives – fear that the Government will waste too much time and effort trying to get Lords reform through parliament, while there are far more important matters – namely the economy – that should be their main focus. Another reason put forward as an objection is that “people don’t care” about Lords reform, the implication being that since it isn’t a priority issue for the vast majority of people, the Government shouldn’t bother with it:

But the issue of Lords reform remains a faultline in the coalition. Lib Dem ministers are determined to press ahead with legislation to make the upper house largely elected, while Tory MPs and peers from all wings of the party spent the weekend identifying it as a key example of a policy showing the government out of touch with the concerns of voters.

Among the Tories joining that protest on Sunday were Lord Fowler, who said it was “bad politics” and not worth any votes, Tim Yeo, who said Lords reform should be “relegated right to the bottom of the queue” and Julian Brazier, who said it was a “ridiculous fringe” policy.

There is some truth to the above. Lords reform – and most political and constitutional reform – is somewhat of a “fringe” policy. Even among many who are keenly interested in politics, issues such as Lords reform (or Senate reform here in Canada) don’t interest them. Among the population at large, these issues simply don’t register. No party will win or lose an election because of its position on Lords or Senate reform – these simply aren’t issues that resonate with the majority of voters.

This doesn’t mean that they aren’t important issues, or that governments shouldn’t proceed with constitutional reforms. A lot of the business of government deals with pieces of legislation of which the general public probably remains blissfully unaware. Do you really think the majority of people are aware of or have an opinion on the Civil Aviation Bill? Does this mean the Government shouldn’t proceed with it? Of course not.

The Government acknowledges that people don’t care about Lords reform, and this is one of the main reasons why they reject calls for a referendum. For example, Deputy Prime Minister Nick Clegg said in a television interview:

“Why is it that we should spend a great deal of money, millions of pounds of taxpayers’ money, asking the British people a question which frankly most people don’t worry about very much?

“I think to subcontract to the British people an issue which the politicians at Westminster just can’t deal with, I think is asking a lot of the British people.”

Ironically, calls for a referendum on Lords reform is strongest among those who oppose said reform – because they see it as the surest way to defeat any attempt at reform.

Whether or not Lords reform enjoys popular support isn’t really the issue, however. As I stated at the outset, it’s simply too complex an issue to put to a Yes or No vote, and this is true of probably all constitutional reform.

If you bothered to follow the hearings of the Joint Select Committee reviewing the draft bill, which I did, one thing that you would have noted is that there was often very little agreement between supposed constitutional and political experts as to what the proposed reforms would mean or how they might impact the functioning of Parliament. If people who are experts in this area can’t agree on these matters, it’s asking rather a lot of the general population to decide the matter.

The Lords reform bill, assuming one actually does get through Parliament, which isn’t guaranteed, will be an extremely complex bill. If put to a referendum, the question will be on accepting the reform package in its entirety – there won’t be individual votes on the various component parts of the bill. What if someone is very much in favour of Lords Reform, but is adamantly opposed to one or two provisions of the bill? Do they vote to reject the entire package, or do they grit their teeth and vote in favour anyway? And if someone is completely oblivious to the issue as it makes its way through Parliament, how are they supposed to vote? Will they even bother? The 2011 referendum on the Alternative Vote demonstrated how easily the No side was able to mount a campaign based largely on half-truths and outright falsehoods, and AV is extremely simple to understand compared to the complex issues raised by House of Lords reform. I really can’t think of any issue less suitable to put to a referendum.

Another problem is that governments tend to treat referendum results as an absolute – it settles the entire issue, not just the matter being voted on. For example, it was quite clear that a “No” vote in the AV referendum was going to be interpreted as a rejection not only of the Alternative Vote, but also of electoral reform in general. Many people voted against AV because they wanted a more proportional voting system – their “No” vote was truly a no to AV, not a no to all electoral reform. Yet the government clearly indicated that the result meant an end to discussions of electoral reform for the foreseeable future. Similarly, it is very likely that a “No” outcome in a referendum on Lords reform would be interpreted not as a defeat of the specific measures put forward in the bill being voted on, but as a “No” to the very idea of reforming the House of Lords.

I am not a huge fan of referendums in general. I don’t think there are many questions which lend themselves well to a general yes/no vote. Constitutional reform is very complex, usually raising many issues which require specialist knowledge to fully understand. I would perhaps see some value in seeking input via referendum on the principle of reform, e.g. before bringing a bill forward, to see if there is general support for the idea of proceeding with said reform, but not in putting the reform package to a popular vote. Ours is a representative democracy, meaning we elect our MPs to make these decisions on our behalf. On an issue such as Lords reform, they will be far better placed to judge the value of whatever reforms are brought forward than would the general public.

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Scottish Consultation on Independence Referendum

As mentioned in an earlier post, the Scottish Government launched its own consultation on a referendum on Scottish independence, which you can view here. The consultation runs until 11 May 2012.

The Scottish Government is looking to hold said referendum in the fall of 2014. This time frame is to allow for the responses to the consultation process to be used to inform the further development of the bill before it is debated in the Scottish Parliament some time in 2013.

Scottish First Minister Alex Salmond (Scottish National Party-SNP) revealed the proposed referendum question:

Do you agree that Scotland should be an independent country?

Salmond described the question as “short, straightforward and clear”, but there has been criticism that adding “Do you agree” made the question biased, and that a better question would simply ask “Should Scotland be an independent country?” More problematic, however, remains the possibility of a second question on the ballot paper on an alternative to full independence:

The Scottish Government  is willing  to  include a question  about  further,  substantial  devolution  on  the  lines  of  “devolution max”  if  there  is  sufficient support for such a move.

Devolution max would see a greater devolution of powers to the Scottish Parliament, in particular, more financial control, without Scotland becoming fully independent.

The option of a second question on the ballot is probably the key point of contention between the SNP and unionists. The other main area of disagreement concerns the SNP’s desire to let 16 and 17-year-olds vote in the referendum. The SNP’s and Unionists’ positions can be summarised thusly:

SNP position Unionist position
Referendum in the autumn of 2014 Referendum “sooner rather than later” (by the end of 2013?)
Backs a yes/no ballot but open to a second “devo max” question Wants a one question yes/no “decisive” ballot
16 and 17-year-olds to be able to vote in the referendum Backs the status quo with 18 and over able to vote
Backs the Electoral Commission’s regulation of the ballot Wants the Electoral Commission to oversee the vot

The larger issue, however, is that of legality. As I had explained in my earlier post, the UK Government has stated that the Union of the Kingdoms of Scotland and England is one of a reserved matter that falls under the purview of the UK Parliament, and because of that, legislation for a referendum brought forward by the Scottish Government would likely be challenged in court and the Scottish Government would lose. Alex Massie addresses this point:

Will it be legal? The Scottish Government make it plain they desire a Section 30 order amending the Scotland Act that would transfer to Holyrood the power to hold a referendum of this ilk in ways unlikely to agitate our learned friends at Parliament House. That is as dandy as you could hope and all might be well but for the problems of conditions and, indeed, a second question. The consultation document is not perhaps as convincing as it might be on this. Apparently:

A wide range of opinion has been expressed about whether or not the Scottish Parliament has the power to hold a referendum consulting the Scottish people about independence. The Scottish Government’s February 2010 paper set out a referendum question asking whether the powers of the Scottish Parliament should be extended to enable independence to be achieved. The Scottish Parliament has the power to legislate for a referendum as long as that would not change any reserved law or relate to those aspects of the constitution which are reserved by the Scotland Act 1998. The referendum question proposed in 2010 was carefully phrased to comply with that requirement. Much independent legal opinion supports the Scottish Government’s view.

What is beyond any question is the ability of the Scottish Parliament to legislate for a referendum about changes to the powers of the Scottish Parliament within the framework of devolution. Legislation to hold a referendum on “devolution max”, for example, is clearly within the existing powers of the Scottish Parliament.

Perhaps. I am not sure that Her Majesty’s Government, far less the courts, necessarily agree with the second paragraph here. Is it really “beyond any question” that a secondary referendum on “devolution max” is “clearly” within “the existing powers of the Scottish parliament”?

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The debate on Scotland indepedence heats up

Debate on the issue of independence for Scotland has heated up again this past week in the United Kingdom.

On Tuesday (10 January), the Government launched its consultation on “facilitating a legal, fair and decisive referendum on whether Scotland should leave the United Kingdom”, which you can download here.

The “legal” bit seems to be the crux of the matter here. I am not a constitutional expert by any stretch of the imagination, and so I won’t attempt to weigh in with my own opinion on the matter; rather, I will share with you what others far more knowledgeable than I have to say.

To summarize, the issue appears whether the Scottish Parliament can legally deliver its manifesto commitment to hold a referendum. According to the UK Government:

The Scottish Parliament only has power to legislate on matters that are devolved and has no power to legislate on matters that are reserved to the UK Parliament. The Union of the Kingdoms of Scotland and England is one of those reserved matters. In our view legislation for a referendum brought forward by the Scottish Government would likely be challenged in court and the Scottish Government would lose.

This will sound somewhat familiar to many Canadians. Just as Canada’s Constitution Act, 1867, set out the powers of the Parliament of Canada and those of Provincial legislatures (sections 91 and 92), the Scotland Act 1998 contains a list of matters that are within the jurisdiction of the Scottish Parliament, i.e. not reserved. That is essentially the power to make laws in relation to matters of health, education , transport, policing and justice. All other matters are reserved, to the UK Parliament, including the Union of the Kingdoms of Scotland and England. Canada has this as well – the Constitution stipulates that residuary powers are the jurisdiction of the Parliament of Canada:

The Constitution Acts, 1867 to 1982, s. 91, confer on the Federal Parliament the power ” to make Laws for the Peace, Order and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces“. This power is “residuary” in the sense that any matter that does not come within the power of provincial legislatures comes within the power of the federal Parliament. This residuary power ensures that every area of legislation comes under one or both of Canada’s two orders of government.

Since, in the opinion of the UK Government, any unilateral move towards a referendum by Scotland would be illegal, the Government is proposing passing legislation that would give the Scottish Parliament the power to deliver a referendum, but with a few strings attached – the question would have to be a straightforward simple question asking Scots if they want Scotland to be independent, yes or no, and the referendum would have to take place within eighteen months of the bill’s passing.

This isn’t what the Scottish Nationalist Party is proposing. The SNP also originally stated that the referendum would be held around 2015, but this week, Scottish First Minister Alex Salmond announced it would be held in the fall of 2014, with full details to be released later this month. The SNP are open to a two-part question, one asking about outright independence, and a second proposing increased financial powers for the Scottish government short of full independence, which has been dubbed “devolution max” or “devo max”. This is viewed as a gradualist approach to independence, a tactic which should be familiar to Canadians since the Parti Québécois has frequently endorsed such an approach for Quebec (called “étapisme”).

It is clear that the Canadian experience with the Quebec sovereignty debate is well-known in the UK. On Wednesday (11 January), during Questions, the Rt. Hon. Michael Moore, the Secretary of State for Scotland, engaged in the following exchange:

Iain Stewart:The House of Commons Library has given me strong evidence to show that the economies of Quebec and Canada as a whole suffered in the 1990s due to constitutional uncertainty. For the sake of jobs in Scotland and England, does my right hon. Friend agree that the last thing we need is a prolonged period of constitutional uncertainty, and that the First Minister should stop playing politics and get on with it?

Michael Moore: My hon. Friend is correct to point to that independent analysis and the experience of Quebec and the rest of Canada. It is vital that the economic uncertainty we now face because of the referendum is resolved, which is why we have brought forward proposals to make the referendum legal, fair and decisive. I want it to happen as soon as possible.

Later that day, during Prime Minister’s Questions, David Cameron also made it clear the UK has no desire to repeat Canada’s experience:

Edward Miliband:I want to ask the Prime Minister about Scotland. We on this side of the House believe that the United Kingdom benefits the people of Scotland and the people of the rest of the United Kingdom in equal measure. We are stronger together and weaker apart. Does he agree that we must make the case for the Union—not simply a case against separatism, but the positive case about the shared benefits to us all of Scotland’s part in the United Kingdom: the shared economic interests, the shared institutions such as the NHS, the defence forces and the BBC, and above all the shared values we hold together?

The Prime Minister: I am happy to say that this is an area where the right hon. Gentleman and I will be in 100% agreement. I passionately believe in the future of our United Kingdom, and passionately believe that we are stronger together than we would be by breaking apart. Frankly, I am sad that we are even having this debate, because I support the United Kingdom so strongly, but we have to respect the fact that Scotland voted for a separatist party in the Scottish parliamentary elections, so the first thing that it is right to do is make clear the legal position about a referendum, which is what my right hon. Friend the Scottish Secretary has been doing. We have made the offer to devolve the power to hold that referendum so that it can be made in Scotland and held in Scotland. Frankly, I look forward to having the debate, because I think that too many in the Scottish National party have been happy to talk about the process but, do not want to talk about the substance. I sometimes feel when I listen to them that it is not a referendum they want, but a “neverendum”. Let us have the debate, and let us keep our country together.

Edward Miliband:May I agree with the Prime Minister? This is not a fight about process between the Westminster Government and the Scottish Government, or between the British Prime Minister and the Scottish First Minister. The way to tackle this issue is to have immediate cross-party talks in Scotland about the timing of the referendum, the nature of the single-question referendum and the vital involvement of the Electoral Commission. Does the Prime Minister also agree with me that we need as soon as possible, as he said, to get beyond process and have that discussion about the substantive issues? This is a momentous decision that our children and grandchildren will have to live with if we get it wrong, so we need a serious, thoughtful and inclusive debate about the choices and the benefits to Scotland of staying in the United Kingdom. On this important issue, the people of our country deserve nothing less than that serious debate about the benefits of the United Kingdom.

The Prime Minister: The right hon. Gentleman is right on those three points. On the process of negotiation, which is very important now, particularly given that the SNP has come out and made more clear what it wants to do, I am very happy for the UK Government and the Westminster Parliament to speak directly to the Scottish Government and the Scottish Parliament, and let us come to a conclusion about the best time and the best way to hold the referendum. But it must be clear, it must be legal, it must be decisive and it must be fair. Those are the absolute keys. I absolutely agree with the right hon. Gentleman: as soon as those process questions are settled, we need to get on to the substance. [ Interruption. ] The only point I would make about the timing—[ Interruption. ] As SNP Members, who cannot seem to keep quiet, are so keen to leave the United Kingdom, I do not quite understand why they want to put off putting the question for so long.

As stated at the outset, I am not a constitution expert, and so I will leave you with some links to articles, columns, etc., written by people with far more expertise.

1. Alex Massie has written a good introduction to the issue for the Daily Beast.

2. The Constitution Unit’s Robert Hazell writes that David Cameron might regret taking this all or nothing approach, while Barry Winetrobe asks what “Union” is everyone fighting over?

3. The Guardian does a reality check on whether the UK Government has the power to dictate terms of a referendum.

4. The New Scotsman asks if David Cameron is right to fear an “independence bandwagon”.

5. Some Q&As on the issue: from the BBC and from the Telegraph.

6. Françoise Boucek warns that, based on Canada’s experience, the campaign for Scottish independence will be long and attritional.

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Some interesting links

1. The Big Society

The Canadian media has recently been reporting that the current Conservative Government is considering emulating the UK Coalition Government in adopting David Cameron’s Big Society. Some of what has been written here in Canada is critical of this, which is their perogative, but I found that they often failed to adequately explain the plan. See, for example, this post by Murray Dobbin, in which he dimisses the initiative as “social engineering from the right” and pointing out that the Big Society “scam” has been “widely ridiculed” but makes little effort to explain how it’s supposed to work. I am not argueing for or against this initiative, but I did think some Canadians (and perhaps some Brits) might be interested in learning more about it via David Cameron himself. Cameron appeared before the UK House of Commons Liaison Committee earlier this week and answered questions on a variety of issues, but a lot of the focus was on the Big Society. Canadians unfamiliar with the UK will not always understand exactly what he is talking about or referring to, but there is still enough information provided to perhaps provide some insight into what Cameron hopes the Big Society will be. You can either watch proceedings here, or read a transcript.

As a side note, this might be of added interest to Canadians who are likely to find the sight of a PM answering questions before a House of Commons committee for 90 minutes a rather mind-boggling affair.

2. New Zealand referendum on its electoral system

New Zealand adopted Mixed Member Proportional (MMP) in 1996, and in the 2008 election, the National Party promised to hold another referendum asking New Zealanders if they were satisfied with MMP or if they wished to change it. That referendum will take place on 26 November, and Australian elections expert and blogger Antony Green will be going to New Zealand for the last week of the campaign and will provide more details on the referendum and the election over the next two weeks. His first post on the referendum looks at New Zealand’s view of Preferential Voting, which is the voting system Australia uses. Those interested in electoral reform may want to bookmark Antony’s blog to keep track of his future posts. For those unfamiliar with the debate in New Zealand, you might find this piece of interest.

3. Rules of Royal Succession

At the recent meeting of the Commonwealth Heads of Government, the leaders of the member nations agreed to change the succession rules and give female members of the Royal Family the same rights to the throne as men, and to end the ban on heirs to the throne marrying Catholics. This hasn’t prompted much debate in Canada, but if you’re interested in the constitutional aspects of these changes, you might find this meeting of the UK House of Commons Constitutional and Political Reform Committee worth a listen. The witnesses are Professor Robert Blackburn, Kings College London, and Dr Robert Morris, Constitution Unit, University College London. While most of the discussion is focused on the UK, they do raise some of the issues facing Commonwealth jurisdictions, including Canada.

4. A UK Clarity Act?

According to this article in the Independent, the UK is considering adopting its own version of Canada’s Clarity Act in order to counter the Scottish Nationalist Party (SNP)’s drive towards a referendum on independence for Scotland.

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Canada’s first voter-initiated referendum

In a much earlier post, I wrote about the Canadian province of British Columbia’s Recall and Initiative Act. This act provides a mechanism to recall sitting Members of the Legislative Assembly (MLAs) and to bring citizen initiatives before the Legislature or to province-wide referendum.

As discussed in that post, which focused primarily on the recall aspect of the act, since the Act’s adoption in 1995, there have been 20 attempts at recalling MLAs, and only came close to succeeding. The verification process was halted because the MLA targeted by the recall petition resigned.

The Recall and Initiative Act also allows for voter-initiated legislation and referendums. The requirements for a voter-initiated referendum are similar to those for a recall of an MLA.

Overview of how a referendum can be initiated in the province of British Columbia

To force a province-wide referendum, a registered voter must first apply to the Chief Electoral Officer for the issuance of a petition to have a legislative proposal introduced into the Legislative Assembly in accordance with the Act.  This application must include a draft Bill for introduction into the Legislative Assembly.

If the application is successful, the Chief Electoral Officer will inform the petitioner to that effect, publish notice of the approval in the Gazette and at least one newspaper and issue the petition 60 days after notice has been published in the Gazette.

The petitioner then has 90 days to gather the required number of signatures in support of the petition. Petitions may only be signed by registered voters in the electoral district for which the signature sheet was issued. Also, each petition requires 85 different petition forms for signatures, one for each electoral district. The petitioner must collect signatures from at least 10% of the registered voters in each of the provinces 85 electoral districts. If this target is not met in even only one district, the petition will be denied.

Petition canvassers – the persons who go around trying to collect the required signatures – must be registered “volunteer canvassers” as per requirements set out in the BC Elections Act.

If the petitioner succeeds in collecting the required number of signatures in each electoral district in the required 90-day time frame, he or she then submits the petition to Elections BC, which then has 42 days to review the petition to determine whether the petition meets all of the requirements.

If the Chief Electoral Officer determines that the petition has met all of the requirements, it and the draft bill are referred to the Legislature’s select standing committee on Legislative Initiatives. The select standing committee must, within 30 days of receiving a copy of the initiative petition and draft Bill, meet to consider the initiative petition and draft Bill. Then, within 90 days of the date of its first meeting, the committee must either table a report recommending that the draft Bill be introduced in the Legislature at the earliest applicable opportunity, or refer the initiative petition to the Chief Electoral Officer. If the select standing committee refers the initiative petition and draft Bill to the chief electoral officer, the chief electoral officer must hold an initiative vote under the Act.

If a referendum proceeds, it requires a super-majority to succeed. This means that the result must satisfy two criteria: 1) that more than 50% of the total number of registered voters in British Columbia vote in favour of the initiative, and 2)  that more than 50% of the total number of registered voters for each of at least 2/3 of the electoral districts in the province vote in favour of the initiative. In other words, the initiative must be supported by a majority of voters overall as well as a majority of voters in at least 64 of the province’s electoral districts. It if receives, for example province-wide support of 60%, but fails to achieve at least 50% support in 64 electoral districts, the initiative will not pass. If the vote is successful, however, the government would be required to introduce the draft bill contained in the petition.

It should be noted, however, that nothing in the Act requires that the government of the day pass the draft Bill after it is introduced. It could die on the floor of the House as do many private members’ bills.

BC’s first voter-initiated referendum

There have been six attempts to launch a voter-initiated referendum since the passage of the Act in 1995, but none succeeded until this year.

In 2009, just after having been elected with another majority in a provincial general election, the BC Liberal Government announced it would be harmonizing its provincial sales tax with the federal Goods and Services Tax, replacing the PST and GST with a new 12% Harmonized Sales Tax (HST). The Liberals has categorically rejected doing so during the election campaign, and their apparently sudden change of heart did not sit well with many in the province.

A former provincial premier, Bill Vander Zalm, launched a campaign against the HST, organizing a series of rallies across the province. In February 2010, his petition opposing the HST was approved, and he successfully collected the required number of signatures in all 85 of the province’s electoral districts. While that was going on, the Government moved ahead, introducing the HST legislation in March 2010, and the new tax came into effect on July 1, 2010.

Vander Zalm’s petition, meanwhile, became tied up in court. A group of BC businesses launched the court action in an effort to stop the anti-HST petition and draft legislation arguing that the proposed legislation is outside the jurisdiction of the province because the HST was enacted by a federal law. In August 2010, the judge disagreed, and the petition and draft bill were referred to the select Standing Committee so that it could decide whether to refer the draft Bill to the Legislature, or refer the petition and bill to Elections BC for a referendum. The committee opted for a referendum. Then-premier Gordon Campbell announced that the results would be binding on the Government.

Meanwhile in September 2010, documents obtained by the media under a Freedom of Information request showed that  B.C. government bureaucrats were engaged in discussions about the HST with their federal counterparts well before the May 2009 provincial election.

Prompted by growing backlash to the HST, Premier Campbell announced in November 2010 that he was stepping down as leader of the Liberal party and Premier, paving the way for leadership contest which was won by Christy Clark in February 2011.

The date for the HST referendum was set for June 2011 and was conducted by postal ballot. Results were announced on August 26 and the petition proved to have been the first successful one since the province adopted the Recall and Initiative Act in 1995. Elections B.C. announced that 54.73% of the 1.6 million British Columbians who cast a ballot in the mail-in referendum voted to get rid of the tax and 45.27% voted to keep it. Over 50% of voters in 71% of the province’s electoral districts rejected the HST, thus meeting the Act’s super-majority requirement.

British Columbia remains the only jurisdiction in Canada with voter-initiated recall and referendum legislation. The BC requirements for both are quite stringent, particularly when compared to similar legislation in some US states, for example. Some might say this hampers democracy, but others would point out that it safeguards against more ridiculous proposals being put forward and ensures that there is a significant degree of support for either recalling an MLA or pushing forward a cause, such as opposition to the HST. If governments thought that any piece of legislation they put forward could easily be overturned by means of a voter-initiated referendum or Bill, that might dissuade them from proceeding with needed, but difficult, legislation. The BC Act manages to ensure that the government won’t have its legislative program hijacked by a minority of disgruntled voters, while at the same time allowing a majority of voters to potentially overturn what they believe to be misguided policy.

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The new independence – devolution-max?

Michael Moore, Secretary of State for Scotland, stated yesterday that independence for Scotland would require two referendums. The first would be an advisory referendum, which would seek a mandate for the Scottish government to negotiate with the UK government at Westminster to work out an agreed position. Any settlement deal reached would then also need to be put to the Scottish people in a referendum for the UK government to approve it.

Moore’s two-referendum statement was immediately rejected by Scottish First Minister Alex Salmond.

I admit to not having followed the evolution of the Scottish independence movement, and so I am busily researching the issue as it will undoubtedly remain very topical over the course of the next four years. Consequently, I am bound to miss out some key point here and there, and would appreciate more informed readers correcting me when needed. What I have been reading, however, seems like a very strong case of déjà vu. For anyone familiar with the Quebec independence saga, there are very striking similarities.

According to Mr. Moore, a binding referendum would be for the UK government to determine, according to UK constitutional law, but existing rules and regulations would allow for an advisory referendum to be held. An advisory referendum is one wherein voters make their views known on important issues without thereby binding legislation to action. Consequently, a referendum question seeking a mandate to negotiate some form of independence for Scotland would not be a binding referendum on independence itself – it would simply indicate if a majority of voters in Scotland would like such talks to proceed. Hence Moore’s opinion that a referendum of that nature would require a second vote, which would be binding. The second referendum would be to seek approval of the deal negotiated by the Scottish and UK governments.

This is rejected by Mr. Salmond, who argues:

Acknowledged experts have made it clear that the people of Scotland have the right to choose independence on the basis of one referendum agreed by the Scottish parliament, on a published proposal, which is then implemented – exactly as was done for devolution in 1997.

Any Canadians who remember the first Quebec referendum in 1980 (or who studied it in school) should be experiencing that déjà vu I mentioned above. In 1979, the Quebec government made public its constitutional proposal in a white paper entitled Québec-Canada: A New Deal. The Québec Government Proposal for a New Partnership Between Equals: Sovereignty-Association. The province-wide referendum took place on Tuesday, May 20, 1980, and the question on the ballot was:

“The Government of Quebec has made public its proposal to negotiate a new agreement with the rest of Canada, based on the equality of nations; this agreement would enable Quebec to acquire the exclusive power to make its laws, levy its taxes and establish relations abroad — in other words, sovereignty — and at the same time to maintain with Canada an economic association including a common currency; any change in political status resulting from these negotiations will only be implemented with popular approval through another referendum; on these terms, do you give the Government of Quebec the mandate to negotiate the proposed agreement between Quebec and Canada?”

As we can see, this was clearly a two-referendum approach. The first referendum sought a mandate to negotiate sovereignty-association with Canada, and promised that the results of the negotiations would only be implemented if approved by Quebecers in a second referendum. Of course, there was no second referendum because the the government of Quebec failed to get a mandate to negotiate, with the proposal defeated by a 59.56% 40.44% margin.

While reading up on the issue of Scottish independence, and more specifically, the Scottish National Party’s position, I came across a very interesting article in the Caledonian Mercury. The article claims that the English media and political establishment are “some way behind the curve” on the issue of Scottish independence, “debating, fighting and challenging constitutional arguments that were current a decade ago but which are not topical today.”

The article claims that Alex Salmond’s views on independence are radically different to what he and the SNP espoused in the 1990s. It would seem, from my reading, that the SNP is now pursuing what the Parti Québécois under René Lévesque pursued back in the day: sovereignty-association.

The article refers to a blog post by SNP policy advisor Stephen Noon, the “brains and heart of the SNP in government”, and in that post, Noon writes that the main problem facing the anti-independence cause is:

they will be arguing against independence in a way that ignores the reality of what independence would be. They will be attacking so-called separatism when separatism is not on the agenda.

Noon goes on to quote Alex Salmond from 2007:

“Independence will bring many opportunities for our nation, and with those opportunities also greater success and prosperity. And with independence I look forward to a new partnership with our neighbours in England – one where we will be equal partners, not surly lodgers.

In that new relationship the Queen would remain the Head of State in Scotland. The current parliamentary and political Union would become a monarchical and social union – United Kingdoms rather than a United Kingdom – maintaining a relationship first forged in 1603 by the Union of the Crowns.

Independence for Scotland in the 21st century would reflect the reality of existing interdependence: partnership in these Islands and more widely across Europe.”

Going back to the Caledonian Mercury article, we learn that senior SNP sources told Angus MacLeod of The Times (which I can’t link to because The Times is behind a paywall) that:

Scottish independence was entirely compatible with some form of set payment from the Scottish to the English Government, covering such items as defence and the diplomatic service, which would be retained for the UK and run by London, as they are now.

Professor James Mitchell of Strathclyde University interviewed 80 senior nationalist politicians to discover what they meant by independence:

“I was surprised by just how pragmatic the senior members were in terms of what they understood independence to mean. I would describe what they are thinking about as being much more of a confederate arrangement within these islands than the traditional concept of independence.”

In other words, it sounds as if what the SNP wants isn’t so much actual full-on independence, but federalism:

At its heart, this new approach would involve the handing upwards of certain powers, over defence, macro-economic management and foreign affairs to run on behalf of both countries, as is done now.

The major difference is that this would be at the discretion of the smaller country which would hand over money to pay for them, not have that money held back – as is the case at the moment.

Of course, all of this is pure speculation at this point, since the SNP has not produced a white paper or any form of published proposal that would form the basis for a referendum. But it is nonetheless interesting that the debate, at least for the SNP, has moved from full on independence to some form of independence-lite. The question that then arises is this: what is the difference between independence-lite and increased devolution?

Stuart Crawford asks just that in a guest piece in the Caledonian Mercury. Strongly in favour of full on independence for Scotland, Crawford writes:

There has been much thinking out loud and policy on the hoof, but what seems to be emerging is a loose consensus amongst some on a concept inevitably labelled “independence-lite”. Although there doesn’t appear to be a formal policy statement on this – yet – most people think it describes an arrangement whereby Scotland would raise all its own finances (full fiscal autonomy) and then “buy” what it needs in terms of defence and foreign policy – and possibly other things such as macroeconomic policy – from the rest of the UK.

In terms of a future Scottish defence policy under this arrangement, senior SNP members have even suggested that Scotland would wish to be able to “choose” which operations “its” defence forces participated in. A little knowledge is clearly a dangerous thing, and we can only hope that wiser heads will point out the difficulties with such a proposition, not least of which is in terms of the party’s current position on NATO.

Be that as it may, independence-lite is an interesting idea, and worth further discussion in a more intellectually coherent manner in due course. What I find difficult at the moment, and perhaps others do too, is how the concept differs fundamentally from “devolution-max”, or indeed any of the other models of enhanced devolution which have been mooted from time to time.

Because, to the layman at least, independence-lite and devolution-max look almost indistinguishable. And given that the opposition parties in the Scottish parliament are more or less all signed up to some form of enhanced devolution, is this a sudden outbreak of consensus?

Also interesting is that Crawford believes that the SNP’s conversion to independence-lite/sovereignty-association/federalism – whatever you want to call it – is purely pragmatic. The SNP knows they couldn’t win a referendum on full independence, so they are willing to abandon “the primary principle behind its raison d’être” in favour of what they hope might be actually achievable:

Faced with mounting evidence that a vote in the Holyrood elections for the SNP is not, per se, a vote for Scottish independence, party apparatchiks are now watering down its independence message to make it more widely palatable, electorally speaking.

It is important to keep in mind that the Scottish Parliament does not have the authority to declare Scotland an independent country. This is true of the province of Quebec as well, as I discussed in this post. However, a strong yes vote would make it difficult for the UK government to refuse to negotiate. Another key point: in the event of a “No” vote in a referendum, that would apparently be the end of things – no one wants to turn this into another Quebec:

Alex Salmond has described the independence referendum as a once-in-a-generation event.

All the parties – unionist and pro-independence – are keen to avoid the situation which has unfolded in the Canadian province of Quebec, where debate over multiple independence referenda over the years has been dubbed the “neverendum”.

At worst, a “No” result in the referendum could spell the end for the SNP as a mainstream political force.

It’s also likely focus would shift back to the debate over more powers for Holyrood – with full fiscal autonomy, as opposed to relying on the Treasury block grant, probably becoming a more serious option.

Of course, that remains to be seen. I don’t have that much trouble imagining a scenario where the result is very close, and those in favour of some form of independence for Scotland decide that another kick at the can is justifiable down the road. And a “No” vote certainly wouldn’t need to spell the end for the SNP. Scottish voters might find that they like having a strong, pro-Scotland party in power, even if they don’t want to follow it down the road to full independence. After all, two failed referendums haven’t led to the demise of the Parti Québécois in Quebec.

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On secession

The May 5 elections for the Scottish Parliament returned a majority Scottish Nationalist Party government. Party leader Alex Salmond quickly announced that a referendum on Scotland’s independence from the United Kingdom would be held during the SNP’s term in office, and recently clarified that it would be held in 2015.

For a Canadian, this immediately brings to mind the province of Quebec’s repeated attempts to gain independence. To date, two referendums have been held, one in 1980, the most recent in 1995. Both were defeated, though the last one was extremely close, with the No side winning 50.58% to the Yes side’s 49.42%.

Following the second referendum, the Government of Canada initiated a reference to the Supreme Court of Canada to answer the legality of a unilateral declaration of independence from a Canadian province. The Government submitted the request for an advisory opinion on the following three specific questions:

  1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?
  2. Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?
  3. In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

The court addressed the three questions in order (click here for full ruling). First, they stated that under the Canadian Constitution (and with Quebec being a party to it since its inception), unilateral secession was not legal. However, should a referendum decide in favour of independence, the rest of Canada “would have no basis to deny the right of the government of Quebec to pursue secession.” Negotiations would have to follow to define the terms under which Quebec would gain independence, should it maintain that goal.

The answer to the second question, which concerned Quebec’s right under international law to secede, gave the opinion that the international law on secession was not applicable to the situation of Quebec. The court pointed out that international law “does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their ‘parent’ state.”

The Supreme Court of Canada’s opinion stated that the right of a people to self determination was expected to be exercised within the framework of existing states, by negotiation, for example. Such a right could only be exercised unilaterally under certain circumstances, under current international law. The court held that:

The various international documents that support the existence of a people’s right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state’s territorial integrity or the stability of relations between sovereign states.

and that

A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.

The court stated in its opinion that under international law, the right to secede was meant for peoples under a colonial rule or foreign occupation. Otherwise, so long as a people has the meaningful exercise of its right to self-determination within an existing nation state, there is no right to secede unilaterally.

The Supreme Court further stated that: Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation. The democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole.

As for the third question, since the court saw no conflict between Canadian law and International law on the question (neither would allow Quebec to secede unilaterally), it considered it unnecessary to answer the question.

Following the ruling by the Supreme Court of Canada, the Canadian Government passed the Clarity Act, which became law in June 2000. While usually attributed to Liberal cabinet minister Stéphane Dion, then Minister for Intergovernmental Affairs, it shared much in common with a private member’s bill (C-341- An Act to establish the terms and conditions that must apply to a referendum relating to the separation of Quebec from Canada before it may be recognized as a proper expression of the will of the people of Quebec) that had been introduced four years earlier (1996) by Reform Party leader Preston Manning and drafted by Calgary MP Stephen Harper (who is now Prime Minister of Canada).

The Clarity Act gives effect to the requirement for clarity set out by the Supreme Court of Canada in the Quebec Succession Reference. It is the interpretation of the Supreme Court, in its opinion, that the federal government give “political actors” the responsibility of returning the right to determine, what, among other things, constitutes a question and a clear majority after a referendum that one province or territory initiates with a view to succession from Canada.

The key points of the legislation included the following:

  • Giving the House of Commons the power to decide whether a proposed referendum question was considered clear before the public vote;
  • Specifically stating that any question not solely referring to secession was to be considered unclear;
  • Giving the House of Commons the power to determine whether or not a clear majority has expressed itself in any referendum, implying that some sort of supermajority is required for success;
  • Stating that all provinces and the First Nations were to be part of the negotiations;
  • Allowing the House of Commons to override a referendum decision if it felt the referendum violated any of the tenets of the Clarity Act;
  • The secession of a province of Canada would require an amendment to the Constitution of Canada.

Although the Quebec government rejected the Clarity Act and countered with the Fundamental Rights Act, which claims exclusive provincial jurisdiction over the process surrounding a future referendum on Quebec secession, the federal government’s insistence on clarity seems to have paid off, at least according to Constitutional expert Sujit Choudrey. In Referendum? What Referendum? Choudrey argues that:

notwithstanding the clash between the Clarity Act and Bill 99, the Secession Reference and the Clarity Act appear to have changed the terms of the debate within Quebec. Indeed, in many respects, the federal government appears to have gained the upper hand.

Choudrey reaches this conclusion based on an analysis of recent events in Quebec. For example, in 2004, former Parti Québécois leader Jacques Parizeau proposed in an op-ed piece in La Presse, that the PQ “view an election victory as a direct mandate to pursue sovereignty without the need for a referendum”:

Public opinion polls consistently show that a clear question on independence would not garner majority support. Moreover, if the House of Commons determined the question to be unclear, support for a yes vote could drop, because a federal challenge to the question would launch a debate in the midst of the referendum campaign “over legitimacy, constitutionality and the meaning of a law.” Faced with the choice between a losing question and an illegitimate and unconstitutional one, Parizeau proposed dumping the idea of a referendum entirely. The very fact that he made this proposal acknowledged that the Clarity Act had fundamentally changed the terrain on which the next referendum would be fought. The reason it had this effect is that while Quebec’s political elites are willing to secede in defiance of the Canadian constitution, the citizens of Quebec themselves are firmly committed to the rule of law.

Parizeau’s proposal was sharply criticized by both federalists and sovereigntists in Quebec and ultimately rejected. In 2005, the PQ’s election platform outlined its policy for achieving independence. This include setting:

the threshold for victory at 50 percent plus one, to be followed by an immediate unilateral declaration of independence. No attempt would be made to negotiate a constitutional amendment with Canada. An independent Quebec would immediately adopt laws to ensure legal continuity, to create a supreme court and to ensure that all taxes paid within the province would be collected by the Quebec government. Quebec would then signal its intention to negotiate an agreement with Canada allowing for the free movement of persons, goods, services and capital, would commence negotiations to accede to international treaties to which Canada is a party and would take steps to secure international recognition and admission to the United Nations.

This policy too was sharply criticized. A former leadership candidate, Louis Bernard, “rejected the notion of a unilateral declaration of independence. Such a declaration would simply have no effect, he argued, because the federal government would continue to operate in the province.” In May 2006, a group of prominent sovereigntists published in Le Devoir “Le Manifeste pour une approche realiste de la souveraineté” (Manifesto for a realistic approach to sovereignty):

The heart of the manifesto’s argument is that the PQ platform’s failure to comply with the Secession Reference would be fatal to Quebec’s attempts to secure international recognition as an independent state. A universal declaration of independence that did not follow a referendum on a clear question on secession, with a yes vote by more than a slim majority, followed by good faith negotiations with Canada, would enable Canada to argue internationally that a unilateral declaration by Quebec should not be recognized.

All this to say that increasingly, there is acceptance in Quebec of the need for a clear question, a yes vote by more than a slim majority, and negotiations with Canada in order to achieve independence for the province.

Recently, however, the issue has resurfaced in the news, not because of a Quebec politician or party, but because the official party position of Canada’s new Official Opposition party, the New Democratic Party, as outlined in their “Sherbrooke Declaration”, states that “the NDP would recognize a majority decision (50% + 1) of the Quebec people.” When asked to clarify his party’s position, party leader Jack Layton replied:

“The Supreme Court decision says you need a clear majority and our Sherbrooke Declaration put a number to what a clear majority means,” Layton said. “Fifty per cent plus one, that’s been our policy for a long time and it remains so.”

There has been much written about this in the past few days. Some defended the NDP position, such as this post. Unfortunately, I read most of these blog posts via an aggregator site, and don’t recall which bloggers wrote what, which is why I am not linking to them. I simply can’t find the posts again. Some of the arguments raised were rather questionable, however. More than a few, including the one linked to above, referred to the example of the province of Newfoundland, which joined Confederation after a referendum vote in favour of 52%:

In 1948, Newfoundland had two referendums on whether or not to join Canada. After not getting the desired result in the first referendum, Joey Smallwood and company ran another one and 52.3% decided to join Canada. This is not a whopping majority and is a rather slim margin, being decided by less than 7 000 votes.

Therefore, a majority of less than 5% is enough to join Canada. But does meet the threshold of a “clear majority”? Who knows! It does meet the NDP criteria as it is above 50%. As for the other parties, there is a lack of…um…clarity.

The first problem here is the claim (which is perhaps being made sarcastically, it’s difficult to tell) that Newfoundland kept having referendums until the desired outcome was achieved. This isn’t the case. There were indeed two referendums. The first, however, had three options: a continuation of Commission Government (essentially government by the UK), responsible government (independence), or Confederation with Canada. The first option was roundly rejected, receiving only 14% support, but the other two options both failed to get over 50% support, with the responsible government option slightly more popular than Confederation (44% to 41%). That is why a second referendum was held, with the two most popular options offered, and Confederation won with 52% of the vote.

However, to this day, there is debate in Newfoundland over that result. There were rumours that the independence option actually won, but the ballot totals were reversed (see the film “Secret Nation”), or that there was a concerted conspiracy before the vote to ensure that the Confederation option would win (see the upcoming book by Greg Malone). Conspiracy theories aside, there were some in the rest of Canada who believed that the 52% result wasn’t a decisive enough verdict endorsing Confederation:

The result, while giving a slight edge to Confederation, contains no clear mandate for union with Canada. The island is sharply divided and the size of opposition to union makes it extremely doubtful if any attempt should be made to decide the question without further clarification of public opinion. The next step is difficult to foresee and there are no guide posts available. The one clear decision arising out of the two referendums is that Newfoundland does not desire to continue commission government.

My point here is simply to illustrate that even a slightly more decisive result than 50% +1 still engenders a lot of controversy.

Other bloggers (or people commenting on blogs) point to Kosovo as case in point for proof that if the Canadian government were to refuse to recognize a 50%+1 result, it would be going against international law. However, the Kosovo example doesn’t really hold water. Leaving aside the obvious that the messy situation in the Balkans cannot be compared to how Quebec has been treated in Confederation, Kosovo did not hold a referendum, it unilaterally declared itself independent from Serbia.

On July 22, 2010, the International Court of Justice delivered an advisory opinion concerning the unilateral declaration of independence by Kosovo. The court had to decide if the declaration did not violate general international law. The court concluded that the unilateral declaration of independence conformed to international law.

The unique situation of Kosovo was not discussed nor presented as a reason for the exclusion of Serbian laws (internal law) to analyse the matter. The court stated that only general international law applies to the situation of a unilateral declaration of independence. The court also stated that a referendum was not required.

However, the ICJ’s opinion did not directly relate to Reference re Secession of Quebec, because the former only addresses the ability to issue a declaration (no declaration of independence of Quebec has ever been issued, in any case); whereas the Supreme Court’s opinion on Reference re Secession concerns the ability to actually effect secession.

A better, and far more relevant example would be the case of Montenegro, which voted for independence from Serbia in May 2006. At the insistence of the European Union, led by France, the majority threshold was raised from 50% plus one to 55%, and the question had to be clear. Failure to achieve that result would mean that the EU would not recognize Montenegro’s independence.  The EU was following recommendations from the Venice Commission, the Council of Europe’s advisory body on constitutional issues. The Venice Commission based its recommendations largely on the Supreme Court of Canada’s ruling and Canada’s Clarity Act. Please also see this document for background on how the Montenegro referendum process evolved.

As Choudrey concludes:

The question of whether Montenegro is a precedent for a future Quebec referendum was a major issue in Quebec last spring. The logical conclusion was that France and the European Union would expect the same of Quebec. Since the PQ has always hoped that France would take the lead in recognizing an independent Quebec, the Montenegro precedent has caused a lot of concern. Every Quebec political party was quick to affirm that for Quebec, the rule is 50 percent plus one. Pauline Marois and Gilles Duceppe went one step further, penning editorials arguing that the Venice Commission did not actually require a 55 percent threshold and calling for referendum rules to be set by Montenegro alone, as Quebec had already done.

But the Montenegro precedent would almost certainly shape the international response to a unilateral declaration of independence by Quebec, as the manifesto acknowledged. Even here, the influence of the Secession Reference and the Clarity Act can be seen, because they were relied on by the Venice Commission in support of its decision. So if the Secession Reference and the Clarity Act are good enough for Montenegro, they will likely be good enough for Quebec.

While there might not be agreement on whether a “clear majority” is 55% or 60% or something even higher, one thing is certain. A clear majority should not be a result that could easily be overturned in a judicial recount.

Related Posts:

Important Political Resources

I admit to being somewhat surprised by some of the keyword searches that bring people to this blog. It seems that too many people have no idea where to get key information – somehow they end up on this blog rather than on the sites they should be visiting to get the information they want. Consequently, I thought I would provide links to key resources based on recent keyword search activity. I will add to this post over time, as needed. Also, if any readers know of sites that should be added to this list, please comment with the link or use the site’s contact form to let me know.

Topics: Election results Canada, Election results UK, general information regarding how elections, by-elections, referendums are carried out, election financing laws, voting procedures, etc.

Elections Canada: If you are looking for information pertaining to any aspect of elections in Canada, Elections Canada should be your first stop. It will most likely be the only site you need to visit. It provides detailed election results of current and past elections, you can even download the data in CVS format. There is extensive information explaining how the voting system works, information for voters, for candidates, for parties, information about political parties, financing regulations, research and discussion papers on all things electoral, and even back-issues of the no-longer-published Electoral Insight magazine, which provides a wealth of interesting articles on various aspects of voting and elections in Canada (some dated by this point, but nonetheless interesting). If you’re looking for information about voting procedures in a particular Canadian province or territory, Elections Canada also has links to the Elections body of each (under the heading Provincial and Territorial Election Officials).

Electoral Commission: Sadly, the UK’s Electoral Commission doesn’t have the same mandate Elections Canada does – it doesn’t oversee or administer national elections. However, it still provides statistics, analysis and reports on elections, as well as information on party financing, boundary reviews, information for voters, and much more. This should still be the first place people visit for information about elections in the UK.

Another useful elections-related site for those interested in Canadian elections is the Pundits’ Guide to Canadian Federal Elections. Any possible statistic you might want about Canadian elections (going back to 1997 only) can probably be found here.

Topics: Parliamentary privilege, parliamentary procedure

A lot of people regularly search for “parliamentary privilege” and end up on my blog. I have written a few posts dealing with some aspects of privilege, but it is a very complex subject matter, and I am hardly an expert. The usual sources for information about privilege are the procedure manuals published by various parliamentary bodies. The most famous – the “bible” so to speak, is Erskine May Parliamentary Practice, now in it’s 24th edition. Sadly, Erskine May is not available online, however, the procedure manuals of the Canadian, Australian and New Zealand Parliaments are. Each has detailed sections on parliamentary privilege, and all quote Erskine May extensively.

Readers might also want to consult the UK Joint Select Committee on Privilege’s 1999 report: Parliamentary Privilege – First Report. It is somewhat dated, but still provides a thorough overview of the topic.

Topics: How Goverment works, parliamentary seating charts, number of MPs by party, general information about MPs, Committee business and reports, status of legislation before the House, Hansard, etc.

The first stop for anyone interested in any of the above, or related topics should be the official website of the parliament of the country you’re interested in. They normally have all that information and more. Here are the parliamentary websites of the countries this blog focuses on the most: Parliament of Canada, UK Parliament, Parliament of Australia, Parliament of New Zealand.

Topic: Styles of Address

Wondering how to refer to an MP, Judge, foreign dignitary, member of the Royal Family or a parliamentary secretary? The site you want is Heritage Canada’s Styles of Address. Or you could try Australia’s equivalent. And we mustn’t forget Debrett’s, the authoritative guide to addressing people.

Topic: Politicians using social media (Twitter, Facebook, etc.)

Canada: PoliTwitter aggregates the Twitter, Facebook, blog and other feeds of any elected federal or provincial official in Canada who has any online social media presence. You can sort them by federal/provincial, by province, and by party. It allows you to see immediately what various politicians and parties are tweeting, blogging and generally discussing online. You might also want to check out TweetCommons, which does something similar.

UK: PoVoice UK does something similar, but only with Twitter activity from UK politicians. It doesn’t seem to be as extensive as PoliTwitter, for example, I can’t tell if politicians have to voluntarily add their feed to it, or how it works, exactly, but I don’t follow it and so can’t really comment that much on how useful it might be. There is also TweetMinster which follows much more than MPs.

Australia: TweetMP documents all Australian federal MPs on Twitter.

Again, if you know of a site that you think should be included on this list, please comment with the relevant information, or use the Contact form.

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STV is not the problem

Liberal Democrat Voice carried an op-ed piece by Anthony Butcher arguing that the Liberal Democrats need to drop their support for the Single Transferable Vote because “the perceived complexity of AV was a significant factor in its rejection by the public. The whole concept of preferential voting has now been tainted for a generation as overly complicated” and STV is more complicated than AV.

It should be noted that Butcher is not a member (or even a supporter) of the Liberal Democrats. He is interested in electoral reform, however, and he argues that “the Lib Dems, UKIP, Greens, ERS and every other organisation involved” in pushing for electoral reform need “to settle on a single electoral system that we will all present to the public”:

Once agreement has been reached, we need a long term campaign of public education and preparation. We mustn’t blunder in to the next referendum (if we are lucky enough to have one) still trying to explain what the system is or why we need it.

As for the choice of system to promote, it has to be simple – the simpler the better. It has to retain the single member constituency link. It has to be a form of proportional representation. This leaves us with the Additional Member System or the simpler top-up systems such as Total Representation or Regional Top-Up. It’s time for everyone in the reform movement to take a long look at these systems and see which one they would be happiest with, and which one will be the easiest to sell to the public.

His arguments against STV and his explanations as to why the referendum on AV failed miss certain key points, in my view. Butcher argues that apart from being too complicated, STV is also riddled with weaknesses that anti-reformers would be quick to exploit, in particular the issue of STV requiring larger constituencies which would be represented by several MPs: “Either way, do we really want to replicate the situation we have with the EU elections where hardly anyone can name a local MEP? The media would tear it to shreds.”

Regarding whether or not anyone can name a local MEP, I am not entirely convinced that this is a good argument against STV. For starters, MEPs in the UK are not elected using STV – they are elected using a regional list system with seats allocated to parties in proportion to their share of the vote. For European Parliament elections, the UK is divided into twelve electoral regions with between three and ten MEPs representing each region. I don’t know if it’s true that few people can actually name one of their MEPs, but even if it is, I would wager that the main reason few people can is that they simply don’t care who their MEPs are. Voter turnout in the UK for European Parliament elections is among the lowest, as this chart clearly shows. In the 2009 elections, only six other member countries had lower turnouts.

If over 60% of eligible voters can’t even be bothered to participate in EU elections, it’s not that surprising then that many can’t then name a single elected MEP. The claim that most can’t name a single MEP because the system used requires large constituencies represented by several MEPs implies that most voters in the UK can name their actual MP because MPs are elected using FPTP and single-member constituencies. However, a poll conducted in March 2010 before the May 2010 general election found that 44% of those surveyed couldn’t name their sitting MP and three in four voters admitted to not knowing who was standing at the May election. To me this clearly proves that it’s not the voting system that is to blame; it’s largely a reflection of an overall indifference to the European Parliament in particular, and to politics in general.

The big problem with attempts to change voting systems is the insistence on putting the matter to a referendum, as I’ve blogged about here and here. To quickly summarise, electoral reform is not a pressing issue for the vast majority of citizens – they aren’t interested and really don’t care that much. A referendum asks people who are at best indifferent to choose between a system they know and have used, and one that they’ve never experienced. How can anyone make an informed choice about which they might prefer or that they think would work best if they have direct experience of only one of the two options? They have no way of knowing if the new system really will be “too complicated”, what sort of results it will return, if it will be fairer, or how parties will act and react under the new system. When presented with a choice between a known entity and a completely unknown entity, most people will stick with the tried and true. It’s human nature.

That is why I regularly suggest implementing the new system for a fixed period of time – something like 20 years or 5 elections, to give voters a chance to use the new voting system and parties to adjust to the changes a new, more proportional system, will entail. Then have a referendum on the issue, asking people if they’d like to keep the new system or switch back to FPTP. That would be a much easier choice for people to make since they’d be voting based on experience, not guesswork, assumptions, or fears.

I do agree with Mr. Butcher that it would probably help the cause if all those in favour of electoral reform could agree on one system to promote. This could be accomplished via a citizens’ assembly which could review various voting systems and recommend one that they feel would work best for the UK. But I disagree that whatever option of electoral reform is put forward has to be “the simplest” and that it has to retain the single member constituency link. Complexity and multi-member constituencies are not the real problem here; the real problems to overcome are unfamiliarity and indifference.

 

Related Posts:

A referendum if necessary but not necessarily a referendum

To no one’s surprise, the UK referendum on the Alternative Vote was lost 69% to 31%. I’ve not yet waded through the myriad opinion pieces in the British press asking “Why did AV lose?” It doesn’t really matter, in the end. I was livestreaming the BBC’s election coverage yesterday, and at one point, one of the commentators (regretfully, I can’t recall who) stated that the big problem with AV was that no one really wanted it.

Nick Clegg was right all along when he (in)famously described it as a “miserable little compromise”. Most Labour MPs didn’t want AV – even though the party’s 2010 election manifesto promised a referendum on AV. The Lib Dems certainly didn’t want AV – they’re partial to STV. The Conservatives didn’t want any sort of electoral reform.

As for the general public, the reality is that electoral reform is a topic of interest to a very small minority only. The vast majority of people, not only in the UK – it would certainly apply here in Canada as well – simply don’t ever think about the issue. And among that small minority of electoral reform geeks, most of them have no interest in AV either.

That said, the issue of electoral reform is – well, I won’t say front and centre – at least being mentioned here in Canada following the results of the 2 May election, conducted, of course, under FPTP. The issue isn’t front and centre because, as I’ve explained above, your average citizen simply isn’t interested in the issue. Electoral reform is being discussed by some bloggers – note – some. Not most bloggers, only some, with the occasional mention in the media (including this blog post of mine getting mentioned on both television and here).

What talk there is of electoral reform has been prompted by the fact that the Conservatives won a majority of seats in the House of Commons on 39% of the vote. That’s 167 seats, 54% of the 308 seats. The only party that was close to matching seat totals and popular vote was the second-place NDP, which won 102 seats (33%) and got 30% of the popular vote. The other three parties are all under-represented: the Liberals have 11% of the seats, but got 18% of the vote, the BQ has 1% of the seats but got 6% of the popular vote (the ratio would be worse if you took into consideration only the province of Quebec rather than national figures since the Bloc only runs in Quebec), and the Greens won 0.3% of the seats on 4% of the vote. If we look at Quebec as a separate entity, the NDP won 77% of the seats in the province on 43% of the vote, while the BQ won 5% of the seats but received 23% of the vote. The Liberals won 9% of the seats in Quebec and the Conservatives 8% on 14% and 16% of the vote, respectively.

So some people in Canada are again talking about electoral reform. And some of them are looking at what transpired with AV in the UK, wondering if there are lessons to be learned there. I think there are, and I shall outline them below.

1. Don’t put electoral reform to a popular vote

I’ve written previously about how I don’t think referendums are good ways to decide policy issues. What transpired in the UK with AV is a perfect example of this.

I also don’t understand why anyone feels something like changing voting systems needs to be put to a popular vote. Did anyone vote on adopting FPTP? As changes were made to our electoral system, for example, expanding the vote to more men (other than simply the landed gentry), then to women, then to Natives, then to prisoners – were any of those changes put to a referendum? I would think that at the time, the idea of allowing women to vote was as controversial and divisive as the idea of adopting something other than FPTP might be to many today – probably even more so. If such a fundamental change could be made to the voting system simply by amending the relevant Act, why couldn’t some form of PR be implemented in the same way?

In my mind, all that would be needed would be for Parliament to set up an independent commission to review voting systems – have them travel around the country seeking input from “ordinary Canadians” – recommend a system that they feel would best serve the country, and then amend the Elections Act accordingly. I would then suggest that the new system be used for a certain number of years or elections, and then maybe put the issue to a vote to see if people prefer the new system (once they’ve had a few elections to try it out and see how it works, and to allow the parties to re-adjust to the changes a new system would bring), or if they’d prefer to revert to FPTP.

However, if people are absolutely adamant that this has to be put to a referendum, the referendum bill needs to be clear on a few points.

2. Any claims made by one side or the other have to be substantiated with actual, verifiable proof.

While both sides in the UK referendum made some rather dubious claims both for and against AV, the No2AV side based its campaign on claims that were complete fabrications. Chief among these was the claim that switching to AV would cost the country £250-mn. I’ve dissected this claim in this post, but suffice it to say that the No side never once produced any concrete evidence to back up this claim. Indeed, the day of the vote itself, one of the leading spokespeople for the No side admitted that the figures were completely made up.

Some on the Yes side wanted to mount a legal challenge against the No side for advancing claims that were simply untrue, but the UK Electoral Commission, which oversaw the referendum, said it didn’t have the mandate to do anything about this.

I would propose that any referendum bill put forward in Canada on changing the electoral system state very clearly that any claims for or against a particular voting system put forward by either side in the campaign in their print and broadcast campaign material would have to list sources backing up such claims, and that any attempts to twist actual facts (i.e. by quoting a passage of a report completely out of context) would be punishable by rather severe fines. This of course doesn’t mean that spurious claims won’t be made, but if the No side in the UK would have had to provide actual documentation to support their £250-mn claims, they wouldn’t have been able to do so.

3. Don’t impose super-majority or minimum turnout requirements for a vote to be legitimate

Four referendums on electoral reform have been held at the provincial level in Canada. All four required that for the vote to pass, it would have to achieve a super-majority, in most cases, an overall endorsement of 60%, and a simple majority in 60% of the province’s ridings. The UK referendum has no such requirement. The House of Lords attempted to amend the bill to require a minimum voter turnout of 40% for the vote to valid, but this was rejected by the House of Commons.

I’ve addressed the issue of super-majorities in this post. I don’t see why, if is considered entirely legitimate that an MP can get elected under FPTP on as little as 29% of the popular vote, or a government can win a majority of seats on well less than 50% of the popular vote and ever-decreasing voter turnout, that changing the voting system would require a super-majority or some rather arbitrarily-set minimum voter turnout requirement before it would be considered legitimate. If a referendum is to be held on changing the voting system, it should require no more than a majority vote of 50% + 1, regardless of voter turnout. Setting a minimum voter turnout requirement means that abstentions are equated with no votes, which is a mistake. As I explain in the post on super-majorities, and as I’ve mentioned here, most people really don’t care much about voting systems, and you can’t assume because someone decided not to vote in a referendum on the issue that they are against change. They’re simply not interested enough in the issue to bother voting.

4. Role of parties and party leaders

I am very conflicted on this one. It was clear in the UK referendum, that the massive unpopularity of Liberal Democrat leader Nick Clegg did indeed hurt the Yes side. A lot of people voted No to “punish” the Lib Dems (which makes no sense at all, but then again, I also don’t understand why there is such a level of pathological hatred being aimed at Clegg in the UK). However, in one of the provincial referendums held in Canada, the government deliberately stayed out of the debate, and many felt that this lack of leadership on the issue hurt the Yes side. It’s a damned if you do, damned if you don’t situation. The involvement of the party leaders in the UK had decidedly mixed results, the lack of involvement in the Ontario referendum probably hurt the Yes side a lot. A very unpopular political leader can definitely be a negative, as the Clegg example shows, while a very popular leader could probably help sway votes one way or the other. In the end, however, if a government is putting forward a proposal to change the voting system, I think it behooves that government to endorse and advocate for the change being proposed. Obviously the situation in the UK was unusually problematic because we were dealing with a coalition government made of a party very much in favour of electoral reform (but not AV) and a party very much opposed to any sort of electoral reform. Plus, the party in favour had become everyone’s whipping post.

These are the main points I would insist on, should this issue ever makes any headway in Canada.

 

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