UK Constitutional Law Association

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Stephen Tierney: ‘And the Winner is… the Referendum’: Scottish Independence and the Deliberative Participation of Citizens

stierneyOnly 45% of Scots said yes to independent statehood, but a massive majority said yes to direct democracy. The turnout of 84.65% was the highest for any UK electoral event since the introduction of universal suffrage, significantly trumping the 65.1% who voted in the 2010 UK general election and the 50.6% who bothered to turn out for the 2011 Scottish parliamentary elections.

But turnout is only part of the picture. The story we are hearing time and time again from voters and campaigners alike is that citizens felt greatly empowered by the referendum and the role they had in making such a huge decision. Evidence is emerging of the extent to which people sought out information about the issue at stake and engaged vociferously with one another at home, in the workplace, in pubs and public meetings, and, to an unprecedented degree in British politics, on social media through Twitter, Facebook, blogs etc. My own evidence is merely anecdotal, but as someone who lived through the referendum campaign, I can say that in the month before the vote I experienced a level of public engagement with a major political issue the like of which I have never known.

And it is surely significant that it was a referendum which proved the catalyst for this level of public engagement. One of the main criticisms of referendums in political science is that they are in fact incapable of fostering the deliberative participation of citizens. The strength of this argument, however, hinges upon an assumption that referendum processes are easily manipulated by elites. By this construction referendums tend to be held quickly by way of a snap poll organised at the behest of the government; voters are presented with an issue which is itself confusing and can be made more so by an unintelligible question; voters themselves lack the time, sufficient interest in the matter at stake or the competence to understand or engage properly with the issue, and in effect turn up at the polling station, if indeed they bother to do so at all, in an unreflective manner, often following party cues in determining how to vote.

The Scottish process could not be more different from this caricature. Voters had plenty of  time to discuss and reflect upon the issue (the plan to hold a referendum was announced in January 2012) and the question (‘Should Scotland be an Independent Country?’) was very clear, having been reviewed by the independent Electoral Commission. I have mentioned the levels of engagement in the referendum by citizens, and indeed one of the most empowering elements of the entire process was the way in which, as the 18th of September approached and opinion polls narrowed, political elites on both sides had to sit on the side-lines, aware that the power to change or not to change the UK state lay entirely in the hands of the Scottish people.

The thorough regulation of the Scottish referendum demonstrates that major constitutional decisions can be made by the people without any significant democratic deficit. Certain conditions are certainly important: the issue must matter to the voter (a turnout of only 42% for the UK referendum on the electoral system in 2011 highlights this); its significance must be readily understood; and the campaign rules must to be structured in a way that creates a level playing field for both campaigns without the distorting effects of massive spending by one side in particular. But when these conditions are achieved as they were in Scotland, then the field is set for a citizen-led process.

What then are the likely consequences of this? There is a trend towards referendum use in the UK and the success of the Scottish referendum will no doubt lead to demands for more direct democracy. For example, processes of further European integration require a referendum under the European Union Act and of course the Conservative Party is committed to at least the possibility of a referendum on continued EU membership in 2017. Whatever arguments can be led in opposition to such referendums, the notion that people are incapable of reaching informed decisions on important and even complex issues has been severely undermined by the Scottish referendum.

This may also have knock-on consequences around Europe. The way in which the referendum seems to have reinvigorated politics in Scotland, and perhaps more widely in the UK, has not gone unnoticed by a foreign media which descended en masse upon Scotland in the week leading up the referendum. In many ways the strength of the process rather than the issue of independence itself became the story. Other sub-state territories will find their arguments for a referendum on independence bolstered by this, in democratic terms at least. But also those states which now increasingly turn to the referendum in relation to the ratification of EU treaties will have a role model for the effective and legitimate application of direct democracy.

The referendum is indeed on the rise in many other states, and this is itself part of a wider process of grassroots political engagement by citizens through non-conventional avenues. The politics of protest has been much talked about in recent years, but at a more prosaic level the internet has opened up a far more diverse range of sources of information for citizens, and at the same time has presented platforms for horizontal engagement among citizens through social media in ways which even ten years ago were barely feasible. Many citizens who are engaging in political argument to an unprecedented extent with many more interlocutors than ever before will not be satisfied unless they also have the power to make political decisions.

Another consequence is that arguments of principle against the referendum have been further undermined by the success of the Scottish process. It does often appear that the opposition we find to referendums in political theory and among political scientists owes more to a broader scepticism with popular politics altogether. Referendums are stereotyped as democratically problematic, not because citizens are in fact ill-informed voting fodder (if this were the case how could we legitimise representative democracy?) but because they get in the way of politics as an almost exclusively elite process interspersed by the occasional inconvenient election.

A theme of great interest today is the emergence of new experiments in applying deliberative democracy in processes of constitutional change, for example in Iceland, Ireland and Canada. What is interesting is that despite the role of the referendum in the latter two cases – in Ireland as a required stage in constitutional amendment and in Canada following citizens assemblies in British Columbia and Ontario – the connection between popular deliberation and the referendum has rarely been explicitly drawn. The Scottish process may well change this. Deliberative democracy is not just about deliberating, it is about deciding. When the people are asked to participate directly in politics it is unsurprising that they are not satisfied by then handing back decision-making power to elites; when they help frame a constitutional issue they also expect to be able to determine that issue.

The referendum is not a perfect device, and if not properly regulated it can indeed be manipulated by elites. But if the process is properly designed we now know it can work well. The Scottish referendum has not changed the borders of the UK but it has challenged the boundaries of our imagination. Constitutional politics may never be the same again.


Stephen Tierney is Professor of Constitutional Theory in the School of Law, University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law. He currently holds an ESRC Senior Research Fellowship to study the Scottish referendum process. He served as independent adviser to the Scottish Government on the technical aspects of the referendum for six months in 2012, and in January 2013 was appointed constitutional adviser to the Scottish Parliament’s Referendum (Scotland) Bill Committee.

This post originally appeared on the I-CONnect blog, and is reposted here with thanks.

12 comments on “Stephen Tierney: ‘And the Winner is… the Referendum’: Scottish Independence and the Deliberative Participation of Citizens

  1. markjf62
    September 29, 2014

    ‘There is a trend towards referendum use in the UK…’ Really? Since I became entitled to vote in 1981, I have been afforded the opportunity to vote in one referendum; namely that concerned with changing the voting system from FPTP to AV in 2011. For the 84% of us who live in England, that hardly represents a ‘trend’, although I am sure that the 14% who reside in Scotland and Wales feel suitably chipper about them, bearing in mind that all the others have related to devolution issues (and one for the Northern Irish on the Good Friday agreement in 1998).

    I am sure that those who float around in constitutional law circles are still basking in the warm afterglow of this latest ‘democratic triumph’. A case could be made, however, that any referendum which might have as its effect the breaking up of the United Kingdom ought to have been offered to the remaining 91% of citizens who would have been directly affected by its outcome.

    There are relatively few issues that you can justify holding a referendum for, and fundamentally they all involve constitutional questions. The issues of independence for Scotland and Wales are now surely over for at least another generation or more, and the questions that will be raised in future will arguably be simply tinkering around with a few powers being devolved. You may find that enthusiasm for referendums about these are not quite so unequivocal.

    The real issue here is voter apathy in the only process that really matters, and you won’t be able to harness one ounce of any of the enthusiasm created by these referendums from many of the 84% of us who have only experienced one referendum since 1975 – and you will recall that the turnout then, on a fundamental democratic issue, was a mere 41%; ie almost 60% of people were really not galvanised by either the issue, the referendum, or both. On what issue (aside from the last ‘big’ one of membership of the EC) do you anticipate any better turnout than that? The Scottish referendum has not ‘challenged the boundaries of our imagination’ one iota; or at least, if it has, only amongst constitutional law academics. Surely now you have all milked every drop from the Scottish referendum cow, and it is time to move on. You can’t paper over the very real cracks of how democracy in this country is at risk of dying of apathy by banging this now tired drum, even if it is accompanied by bagpipes.

  2. John Hartigan
    September 29, 2014

    I suggest a moment of pause before we congratulate ourselves too much on the democratic credentials of this process. It has been an excellent demonstration of democracy in Scotland. I am not sure it has been a democratic triumph for the rest of the United Kingdom of Great Britain and Northern Ireland or its Parliament.

    The facts remain that, hitherto, constitutional change has required debate and a mandate from general election manifesto pledges. Thus devolution didn’t happen until a Labour government was returned to power in 1997 and 418 MPs had a mandate to pass devolution legislation to enable devolution referenda in Scotland and Wales. When it comes to independence, only 6 MPs can claim a mandate to legislate on an independence referendum. The prospect of independence has never been put to the UK electorate. I assume this awkward fact has not been raised in debate because many people agree with the legislation and to criticise the process could be interpreted (wrongly) as being anti-Scottish.

    Parliament crossed a constitutional Rubicon and acted far outside its normal competence. This is exceptionally dangerous for our democracy. With this precedent set, Parliament could agree to disestablish the Church of England, change the voting age, hold a referendum on Welsh or Cornish independence or abolish the monarchy etc. without feeling obliged to seek a mandate from general election manifesto pledges or specific referenda. MPs have assumed unprecedented power to make fundamental constitutional changes without consent. Perhaps this should be challenged before the next major change turns out to be one that most people don’t agree with.

    Many commentators would agree that the Referendum brought out a near-universal condemnation of the “Westminster establishment”; requiring its politicians to beg that voters shouldn’t vote Yes as a protest against them. However, it has unwittingly increased Westminster’s power. Rather than a triumph of democracy, it may well have been another nail in its coffin.

  3. abesto
    October 2, 2014

    I share this article’s enthusiasm for way in which the Scottish independence referendum saw a stimulation of mass democratic debate, and popular participation in decision-making.

    However, Tierney’s assessment of the referendum is at best wishful thinking, and at worst alarmingly naive.

    Tierney notes the criticism that “referendum processes are easily manipulated by elites”, and suggests that this didn’t happen in Scotland. Tierney writes that for a referendum to be be viable: “the campaign rules must to be structured in a way that creates a level playing field for both campaigns without the distorting effects of massive spending by one side in particular. But when these conditions are achieved as they were in Scotland …”.

    There was a level playing field in only one respect: the limits on funding. In several other crucial respects, the playing field was tilted massively in favour of the status quo.

    The biggest single problem was the partisanship of the media. Of the dozens of national daily and weekly newspapers available in Scotland, only one (the low-circulation Sunday Herald) supported independence; the others were mostly opposed. Some such as the Daily Record, became of themselves leading campaigners.

    Meanwhile the Dr John Robertson from University of West Scotland has documented in great detail how the BBC functioned as a state broadcaster, persistently favouring the status quo both in time allotted and in the framing of stories, as well as in more subtle ways such as persistently portraying the Yes campaign as a personal campaign by Alex Salmond, and uncritically trumpeting interventions by “authorities” such as UK institutions and big businesses. (Instead of engaging with this academic assessment of its output, it responded by attacks on Roberston). It uncritically reported the astroturfing “Vote No Borders” campaign’s claim to be a “grassroots” effort, without ever bothering to do the simple homework required to find that it was the product of a London-based media company. It uncritically parroted the claims by Jim Murphy that he had been harassed and intimidated, colluding in Murphy’s portrayal of one egg-throwing incident as a symptom of alleged systematic intimidation without challenging his lack of evidence.

    In the closing period of the campaign, the BBC never challenged the breach by UK ministers of the 28-day “purdah” rule contained in section 29 of the Edinburgh Agreement; it gave prominent and uncritical coverage to the interventions by Gordon Brown, never (AFAIK) explaining that he spoke to invited audiences with cameras arranged to disguise the tininess of many of the gatherings, let alone subject his proposals to the sort of forensic scrutiny to which the Yes campaign was subjected. In the last week, the BBC colluded with the Treasury in the leaking of market-sensitive information and instead of challenging that breach of Treasury rules the BBC went to attack mode — misprepresenting the decision made, pressing the point like campaigners, and falsely asserting that no answer was given.

    Then the BBC .repeatedly misrepresented events on the streets in Glasgow. A gathering of thousands of Yes campaigners was depicted by images of a small group, and even after the result was announced it misrepresented loyalist attack on indy supporters in George Square as a clash between two sides, even tho social media carried live imagery of the thuggish assault.

    This media partisanship was anything but the “level playing field” which Tierney claims. The lack of sanction of UK ministers’ breach of purdah is not a level playing field. The UK’s intensive lobbying of foreign govts to oppose independence was not a level playing field.

    A journalist might choose to overlook these factors, but for a professor to overlook them and whitewash the referendum’s deficiencies is shameful.

    I supported the holding of the referendum, and supported the Yes campaign. But the conclusion I draw from indyref is very different to Tierney’s. My conclusion is that a referendum cannot be a fair tool of democracy when concentrated media ownership and a partisan state broadcaster distort the campaign … and its outcome cannot be considered legitimate when the state deliberately breaches purdah rules without sanction.

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This entry was posted on September 29, 2014 by in Scotland and tagged , , , .

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