James Mitchell argues that the focus on what would constitute a democratic mandate to negotiate independence has led us to lose sight of wider democratic deficiencies in Scotland.
Democracy? It is a dream to suppose that we already know what it is, whether out of satisfaction with our present state or to attack its misery. It is simply a play of open possibilities, inaugurated in a past still close to us, and we have barely begun to explore it.Claude Lefort (quoted in Jan-Werner Müller, Democracy Rules, Penguin, 2021)
It is almost a rule of thumb that ‘Democratic’ in the formal name of a state signals that the state is anything but democratic. And in liberal democracies, we must watch out for democratic backsliding hiding behind a curtain of democratic rhetoric. Democracy has been transformed from pejorative term to a ‘hurrah’ word over the course of the last century but there are more fights over the claim to be democratic than battles to democratise. There are numerous definitions of democracy but its essence is clear – democracy is a foundation of civic equality, the right and opportunity for each citizen to have an equal and authoritative voice and choice in decisions affecting them.
The pursuit of democracy is an ‘endless quest’ (Przewoski, A. (2016) ‘Democracy: a never-ending quest’, Annual Review of Political Science, 19:1–12) and we can never rest on our laurels. Democracy is not an institution, not a state of affairs but an ongoing process. In approaching the question of Scottish democracy, we need to consider its many facets, applauding progress and identifying and addressing where more work is required. In his 2021 book How Sick is British democracy? Richard Rose of Strathclyde University offers a useful reminder that a ‘discriminating examination avoids the mistake of judging the whole of the body politic by a single part. It can identify those institutions that are in good political health and those that are not’.
The creation of the Scottish Parliament marked an important democratic moment. But to describe pre-devolution Scotland as undemocratic would be as wrong as any claim that devolution was the final stage in a democratic journey. Major democratic deficiencies were addressed directly with the election of a Scottish Parliament. Accountability of decision makers was considerably enhanced and Scottish law and policy-making came under the control of a Parliament directly elected by Scottish voters. Devolution also created conditions for addressing many other deficiencies.
Nicola Sturgeon’s claim that the campaign for independence is ‘Scotland’s democracy movement’ is an attempt to usurp, monopolise and mobilise around the ‘hurrah’ word. This is different from claims that there was a democratic deficit pre-devolution. Campaigners for a Scottish Parliament identified a deficiency but did not arrogate the claim to be democratic to themselves. If it was not the intention to suggest that anyone who disagreed was undemocratic then the SNP leader should make this clear. To equate the Supreme Court ruling that the Scottish Parliament is not empowered to hold a referendum with a rejection of democracy may be, as Jonathan Shafi has argued in his ‘Independence Captured’ blog, a ‘more comfortable setting for the SNP. It means the detail of currency, borders, EU membership and so on is relegated to a standoff with a deeply unpopular Westminster establishment’. As the ruling could only have been a surprise to anyone with scant understanding of devolution, the SNP needs to explain why it has taken so very long to make this claim given we have known for over 20 years that this was the case. The Supreme Court case was little more than a useful piece of populist political theatre.
But that does not deny that a problem exists. Indeed, there is a democratic deficit. At present, the only means of authoritatively determining whether Scotland could become independent is entirely within the gift of Parliament at Westminster which, in reality, means the UK Government of the day. Referendums have been used inconsistently in the UK. As the late David Butler, doyen of British election studies, explained to an enquiry over a decade ago, referendums ‘are only going to be held when the Government of the day wants it or when it would be too embarrassing (because of past promises) to get out of it. Normally they will have a referendum because they think they are going to win and they will not have to it if they are not going to win it. They will just dodge the issue. It is a matter … of straight politics.’ This reminds us of Przeworski’s comment that democratic constitutions provide procedural certainty and admit uncertain outcomes. Authoritarian regimes provide procedural uncertainty but seek certain outcomes. The UK is not an authoritarian state, though it exhibits authoritarian tendencies and its use of referendums fail to meet the test of rigorous impartiality.
The UK Government is never likely to be entirely impartial in this matter. There is a fundamental difference with the situation in Northern Ireland. In November 1990, Peter Brooke, Northern Ireland’s then Secretary of State, stated that the UK Government had ‘no selfish strategic or economic interest in Northern Ireland’, a phrase that made its way down the years into the Good Friday Agreement with a commitment to ‘rigorous impartiality’. That clearly does not exist in the case of Scotland. Not only does the UK have an interest in maintaining Scotland in the union but is explicit about this. An agreed democratic mechanism for allowing the possibility of independence is needed, not imposed by one party to the constitution. Constitutional rules must be arrived at through consensus, cannot be imposed and must be rigorously impartial.
An obvious solution, given the UK’s ‘political constitution’, would be to allow voters to decide whether a referendum should be held after focused deliberation at an election. The most obvious and authoritative mandate would be the result of an election in which a party or parties with clear and unambiguous manifesto commitment(s) to a referendum secured an overall majority in Holyrood. Manifesto references to ‘changed circumstances’ or some variant would be insufficient given the ambiguity and openness to competing interpretations of ‘changed circumstances’.
This takes us some way towards providing a democratic solution to this constitutional conundrum but requires elaboration. A new convention of the constitution, similar to the Addison-Salisbury convention, is required that builds on the 2011 precedent while providing greater clarity and predictability. In 1945, the Attlee Government faced the prospect of defeat on its major programme of government despite clarity in Labour’s manifesto in that year’s election. Negotiations took place between Viscounts Addison (for the Labour Government) and Cranbourne (becoming Lord Salisbury two years later for the Conservatives) resulting in this new convention. Viscount Cranbourne, Conservative leader in the Lords at the time, explained:
Whatever our personal views, we should frankly recognize that these proposals were put before the country at the recent General Election and that the people of this country, with full knowledge of these proposals, returned the Labour Party to power. The Government may, therefore, I think, fairly claim that they have a mandate to introduce these proposals. I believe that it would be constitutionally wrong, when the country has so recently expressed its view, for this House to oppose proposals which have been definitely put before the electorate.
In constitutional politics, we may disagree on outcomes but procedural certainty on agreed rules is essential.
This is not the same as suggesting that an election could be a ‘de facto referendum’, which makes no sense, but that an election might be a mandate to hold a referendum as happened in 2011. Nicola Sturgeon’s claim that the next election will be a ‘de facto referendum’ fails the basic democratic test of ‘rigorous impartiality’. The SNP would have been more convincing had its leader simply focused on demanding to know the conditions under which the principle of Scotland’s right to become an independent state would translate into practice. The ‘democracy movement’ rhetoric was not designed to contribute to a serious means of moving debate on but to fuel the debilitating politics of grievance.
And there is much more to democracy than the democratic deficiency on what would constitute a mandate to negotiate independence. We have lost sight of wider democratic deficiencies in Scotland. The Scottish Government’s hyper-centralisation undermined Nicola Sturgeon’s effort to wrap herself in democratic garb. At its foundation, the Scottish Parliament adopted the principle that it ‘should embody and reflect the sharing of power between the people of Scotland, the legislators and the Scottish Executive’ (Report of the Consultative Steering Group on the Scottish Parliament, Shaping Scotland’s Parliament, Scottish office, December 1998, section 2, para.2). Instead, Scottish central government has grabbed and hoarded power especially at the expense of local government. There is a desperate need for investment in the critical infrastructure of democracy. Decentralisation and subsidiarity had been key themes pre-devolution in debates on creating a more democratic Scotland but ignored, if not trashed, by this SNP Government. The relationship between Government and Parliament has become imbalanced. The critique of the Westminster system that inspired many to seek an alternative model in devolution applies all too obviously to the devolved system we have today. Ironically, a shocking lack of transparency is all too evident in the SNP Government. It should, for example, not have taken an eighteen-month Freedom of Information (FoI) battle for a newspaper to discover that the Scottish Government had provided a taxpayer’s guarantee of £586m to GFG Alliance (Financial Times, 17 November 2021). It is not as if the Scottish Government were unaware that the attempt to hide this information was wrong as was clear from further Freedom of Information disclosures.
Democratic deficiencies go well beyond the formal institutions of the state. Political parties are key intermediate institutions. The SNP leader’s June announcement of her latest tactic bypassed her party entirely though pliant SNP members, including MSPs and MPs, have allowed the party to abandon any pretence of internal democracy. Her plan to ask her party at a special conference to work out the details was a classic case of dumping a problem on, rather than empowering, the membership.
Democracy must be more than holding a referendum. A leader who presumes to lead a ‘democracy movement’ needs to address the multiple morbidities of Scottish democracy, not contribute to them. The Scottish Parliament provides ample opportunities to address democratic deficiencies. Civic equality, the cornerstone of a democratic polity, means equal access to participation is a democratic but Scotland’s shameful levels of poverty inhibit participation in public life. Crass blame-games insult those unable to participate while seeking their support. The most damning failure has been the substitution of fine democratic rhetoric for action.
Reference: Przeworski, A. (1986) ‘Some Problems in the Study of the Transition to Democracy’ in Transitions from Authoritarian Rule: Comparative Perspectives, O’Donnell, G. Schmitter, P. and Whitehead, L. (eds.), Baltimore: Johns Hopkins University Press, pp47-63.
James Mitchell is Professor of Professor of Public Policy at the University of Edinburgh (tweeting at @ProfJMitchell) and is author the Jimmy Reid Foundation pamphlet, ‘The Scottish Question Revisited’, which available for purchase from https://reidfoundation.scot/the-scottish-question-revisited-pamphlet/