I note in passing that, as I write, there are nearly 70 comments on The National’s report of what Chris Hanlon said and a mere half dozen on his actual statement. I’ve an idea this tells us something interesting about the way people consume media messages. But that is a thought to be pursued elsewhere.
I have a great deal of respect for Chris Hanlon. I know him slightly from our encounters at SNP conferences, back in the fondly remembered days when such things existed and were of some significance. One thing I know about him is that he is diligent. He tends to be on top of his brief whatever matter he may be dealing with. He does his research. He is thorough. He is well-prepared. I think anyone who has heard him speak at conference would testify to this.
My impression of Chris Hanlon was as an individual who would always think things through before taking a position. Which is why I unhesitatingly voted for him as policy development committee convener – which was a very important position when the SNP could claim to have meaningful internal democratic structures and procedures. If you’ll forgive the nostalgic reminiscence.
I stress my regard for Chris because I am of the opinion that he has let himself down rather badly with this statement. I don’t know what prompted him to embrace the notion of a multi-option referendum including ‘devo-max’ – an ill-defined term at best. I can’t think of a single good reason why he would abandon his popular sovereignty fundamentalism. Indeed, I can’t think of any way to be anything other than a fundamentalist when it comes to the sovereignty of the people. It is arguably the most fundamental and essential principle of democracy. It cannot be diluted in any way without being destroyed. If popular sovereignty is compromised, it ceases to be popular sovereignty. Partial sovereignty exists in the same way as does partial pregnancy.
To see how Chris has got this wrong it is necessary to understand what we’re referring to when we talk about a referendum. We must understand its purpose and what form it must take if it is to fulfil that purpose effectively. Above all, we must not confuse a referendum with an election. Elections are for making choices. Referendums are for making decisions. In principle, an election may offer the people an infinite number of choices of candidates and manifestos. The people vote according to their choices and by various formal processes their votes are translated into a parliament and a government and, in theory at least, a policy programme. Theoretically, the people get the parliament, government and policies of their choosing. How closely these things actually reflect the people’s choice is a function of the constitution. The perfect constitutional settlement would be one that without exception results in a parliament, government and policy programme which precisely reflects the will of the people. Needless to say, that never happens in real life. Constitutional politics is about making sure the will of the people is honoured. Or ensuring that it isn’t. Like all politics, it’s a contest of ideas and ideals. The best rarely win. But the worst are generally defeated. That’s democracy.
Where the outcome of an election may be some ill-defined, partly-formed compromise among a host of choices offered and made, a referendum should be decisive. The outcome should be not merely a result but a decision. A decision on a particular course of action. In a representative democracy we use elections to choose the people and parties that will make decisions on our behalf for the following four or five years. In a referendum that is done correctly the people take to themselves the power to make a decision on a particular matter.
In order to ensure a clear and unambiguous decision a referendum must be binary. Multi-option referendums are close to being a contradiction in terms. Even if, as in the situation Chris Hanlon refers to, there is powerful evidence that one option will emerge as the unarguable winner, there still remains the potential for the votes to split in a way which produces no decision. Consider both the 2014 Scottish independence referendum and the 2016 EU referendum. Both produced results but no decision. There was no inevitable course of action entailed by the result in either of these cases. In both cases what ensued from the vote was a prolonged and increasingly acrimonious debate about what the result meant.
A referendum which produces a result without a decision is an exercise which has failed by definition. It serves only to intensify debate over the issue that it was supposed to settle. Multi-option referendums are a bad idea because they are inherently liable to fail. If we accept the principle of multi-option referendums then we are accepting the likelihood of failure.
Done properly, a referendum cannot fail. Being binary means that there is only a vanishingly unlikely possibility that the vote won’t go one way or the other. So long as the options offered are distinct, defined and deliverable then the referendum must produce a decision as to one of two courses of action. Distinct meaning that the options must be totally dissimilar. Defined meaning that each option must be precisely described at the outset and that this description must remain fixed. Deliverable meaning that it must be something that is within the power of the parliament/government being instructed by the referendum. It must be a course of action that can be taken without reference to any other agency. It must be a change which can be implemented solely on the strength of the referendum result.
Chris Hanlon’s idea to include a third option in a new independence referendum fails to meet the criteria for a ‘good’ referendum. Even though he makes an effort to tightly define what he terms “devo-min-max” it is still devolution. It is not meaningfully dissimilar from what we already have. It is neither independence nor ‘devo-max’. It is obviously not independence. It looks a bit like what a federal settlement would give us if such a thing were possible and acceptable without independence being restored first. But it is the third criterion that totally sinks Chris’s “devo-min-max”. It is not deliverable.
The Scottish Parliament cannot bring about such a settlement. It would have to be referred to Westminster. So that’s popular sovereignty gone right away. Only the Scottish Parliament has democratic legitimacy in Scotland. Only the Scottish Parliament can have the rightful authority to act on the decision made by the sovereign people of Scotland by means of a referendum. An option which requires that authority to be ceded to another agency cannot be valid. The sovereignty of the people is inalienable and non-negotiable (A lesson Nicola Sturgeon is yet to learn.)
But “devo-min-max” isn’t only undeliverable by the Scottish Parliament. There is also the problem that it won’t and can’t be delivered by the British state. Chris’s “devo-min-max” includes elements which would require the British political elite to make concessions which it is not only unwilling to make but is incapable of making. The concessions demanded by “devo-min-max” would affect England as well as Scotland because they would fundamentally alter the status of the British/English parliament. By granting (note that ghastly word!) “devo-min-max” the British would be compromising the sovereignty of parliament. And that is the principle which underpins the entire British state. It is what makes possible the structures of power, privilege and patronage which define the British state.
By allowing (another ghastly word!) “devo-min-max” the British state would effectively be legislating itself out of existence. And doing so without any reference to the people of England or the rest of the UK.
Sorry, Chris! Your idea is a non-starter. You really should have thought it through.
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