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

—Stephen Tierney, University of Edinburgh*

Only 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.

Suggested citation: Stephen Tierney, ‘And the Winner is… the Referendum’: Scottish Independence and the Deliberative Participation of Citizens, Int’l J. Const. L. Blog, Sept. 26, 2014, available at: http://www.iconnectblog.com/2014/09/and-the-winner-is-the-referendum-scottish-independence-and-the-deliberative-participation-of-citizens/

---

 

* 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.