Scotland Back in the Day: 1979's 40% rule cooked the books against devolution

Take the case of the European referendum in May. It beggars belief that a top-class constitutional historian like former Prime Minister David Cameron could make such a mess of things – and according to Owen Dudley Edwards, no less, Cameron, who earned a First in the subject at Oxford, really does know his stuff about the constitution.

Cameron’s biggest error in hindsight is that he did not set the bar higher for Brexit to win. In most companies and institutions, when it comes to major constitutional changes, a simple majority of votes is not always sufficient. Substantive change often requires approval by 60 per cent or 75 per cent of shareholders or stakeholders, and since no one could possibly argue that taking the UK out of the EU was not a massive change, the question must be asked why the bar was not set higher – say, approval to Leave had to be given by 60 per cent of the electorate.

Unfair in a democracy, I hear you say, where 50 per cent plus one is a majority and the majority rules. All democrats must accept that position, and I do. This week’s Back In The Day, however, focuses on one of the most heinously unfair interferences in the history of democracy anywhere, the imposition of the 40 per cent rule in the 1979 Scottish devolution referendum. I believe Cameron dared not go for such a threshold in May because of the disgust, anguish and upset that 1979 rule caused.

A quick background note: the 1979 referendum was effectively a bribe, brought in by Jim Callaghan’s Labour Government in return for the support of the SNP and Plaid Cymru.

The Kilbrandon Commission on the Constitution earlier in the 1970s had recommended devolved legislatures for Scotland and Wales, with the Scottish body to be a single chamber of around 100 representatives elected under a proportional representation system – more or less what eventually happened in the late 1990s.

Under Labour’s Scotland and Wales Bill of 1976, most of the Kilbrandon recommendations devolving power on matters such as health and education went before the Commons where they were savaged by the Tories in particular. On the first day of the Committee Stage, a record 350 amendments were put down, and after a so-called guillotine motion, the Bill was defeated. Callaghan’s Government had no option but to withdraw it.

They came back in November, 1977, after the Callaghan Government had been in dire straits. Harold Wilson had won a majority of just three in October, 1974, when the SNP won 11 seats with a popular vote of 30 per cent in Scotland. When Wilson dramatically resigned in April 1976, Callaghan beat off five other candidates to become Labour leader and Prime Minister. The majority had already disappeared as Labour suffered defections and by-election defeats, so Callaghan did a deal with the Liberal leader David Steel to form the Lib-Lab pact and also bought the support of the 11 SNP MPs with the promise of a referendum on devolution.

Callaghan kept his word and the Scotland Act 1978 made its slow progress through parliament with Labour rebels joining Tories in opposing it at almost every juncture.

The most contentious element of the referendum by far was the 40 per cent rule, introduced late in the process by the Labour MP George Cunningham. There had been a previous amendment by Labour MP Bruce Douglas-Mann to make it a 33.3 per cent threshold, but Cunningham’s amendment went through against Callaghan’s wishes by 166 to 151 – both those MPs, it should be noted, represented English constituencies.

The 40 per cent rule was taken up with enthusiasm by the anti-devolution side. It effectively cooked the books in favour of the vote delivering a result against devolution, as an abstention effectively became a No vote.

Cunningham’s ploy was clever in its own way. He argued repeatedly that if 40 per cent of the electorate did not give their approval for devolution then it had no legitimacy, citing Denmark as a country with similar constitutional rules. It also meant that Scotland’s notoriously lax electoral register gave the No side a big advantage – Yes campaigners were reduced to combing through registers to prove that people were dead and should not be included in the count.

The killer clause in the Act was this: “If it appears to the Secretary of State that less than 40 per cent of the persons entitled to vote in the referendum have voted “Yes” in reply to the question posed in the Appendix to Schedule 17 of this Act or that a majority of the answers given in the referendum have been “No” he shall lay before parliament the draft of an Order in Council for the repeal of this Act.”

George Reid, the SNP MP for Clackmannanshire and East Stirling and later the second Presiding Officer of the Scottish Parliament, laid out the matter in a superb piece of journalism – he had been a top reporter for the BBC and others in his earlier life.

Reid wrote: “Put simply the process of elections, which has been accepted in the past has changed to try and prevent Scotland from having an Assembly. In all referenda the largest share of the votes cast has been the only criteria for determining the winner. Not so this time.The point is still not understood in Scotland. For the Yes campaign to be successful 40 per cent of the total electorate must vote that way.

“Everyone who is dead but on the current roll [like my father] is therefore an automatic No. People who can’t be bothered to go to the polling stations are counted as a No (and usually 25 per cent of the electorate don’t bother turning out in a General Election). So are people on holiday or away on business.”

The SNP was not then the juggernaut it is now, but they went to war on the electoral registers. In Glasgow, they found errors of 20 per cent in some streets, while in Perth and Kinross the SNP successfully challenged 200 entries – some were found to be English owners of holiday homes.

There were some in the SNP who could not vote Yes because they believed it did not go far enough, yet the overriding picture of the time was the split in Labour ranks, with Brian Wilson chairing the Labour Vote No campaign and Tam Dalyell and Robin Cook as vice-chairs, and Donald Dewar, Denis Canavan and George Robertson on the Yes side. Their arguments were long and often bitter...

IN the end, the Yes campaign won, albeit very narrowly with 51.6 per cent or 1,230,937 votes in favour of devolution against 1,153,502 votes or 48.4 per cent against. The crucial figure, however, was the turnout which was just 62.9 per cent of those entitled to vote. When the 40 per cent rule was applied it meant that 32.85 per cent of the electorate had voted Yes compared to 30.78 per cent who had voted No.

Callaghan’s Government duly dropped the Scotland Act 1978. A motion of no confidence in the government was then tabled by the Conservatives and supported by the SNP, the Liberals and eight Ulster Unionists. This motion was carried by one vote on March 18, 1979. The next day Callaghan announced that parliament would be dissolved.

Margaret Thatcher and her Conservative Party swept to power in May with consequences that Scotland remembers all too well.

It would be 1997 before Labour returned to power and that year’s referendum brought the Scottish Parliament back for the first time since 1707. Neither then nor in any referendum since 1979 has any politician dared to suggest that there should be thresholds on a vote – and here’s the final proof why it was wrong and unfair.

In his memoirs Tam Dalyell wrote the following: “I have come to believe that imposing a 40 per cent hurdle was a mistake. People in Scotland had been used to abiding by simple majorities. Unfortunately, from my point of view, but alas, understandably, the 40 per cent condition was seen as ‘not quite right’ and ‘downright cheating’ by others.”

There you have it – a mistake, and one that stopped Scotland’s devolutionary progress for 20 years.

While we’re on the subject of the UK’s constitution, here’s another lesson from recent history that Theresa May and Nicola Sturgeon might like to chat about over coffee.

It has been generally accepted for some time that Scotland will only be able to declare independence after a second indyref. But what if May and co decide to refuse that referendum? Does Scotland then move to a Unilateral Declaration of Independence (UDI) as Rhodesia did in 1965 and indeed the USA did in 1776?

That is not actually necessary. If the second referendum is refused, every single Scottish MP should resign – and yes I know MPs don’t resign, they have to seek the Chiltern Hundreds or some other pretend office of state – and if the subsequent by-elections are all held on the same day then if the SNP win the majority of seats and votes cast, Scotland would become independent that day and, like Brexit, argue the separation details later.

It can’t be done, you might think, but 30 years ago, that is more or less what happened when Margaret Thatcher’s government tried to push through the Anglo-Irish Agreement. It was fiercely opposed by the Unionists and many Republicans, too, as it confirmed Northern Ireland’s place in the UK.

Totally opposed to having the Republic get any say at all in Northern Irish matters, in December 1985 every one of the 15 Unionist MPs duly resigned – the Ulster Unionists, Democratic Unionists and Ulster Popular Unionists all walked, leaving only two MPs from Northern Ireland in the Commons.

They then campaigned under the Ulster Says No banner, a movement led by the Rev. Ian Paisley, leader of the Democratic Unionist Party. It was a genuine mass movement, mobilising Unionists in a fashion that had not been seen since the 1921 Partition itself.

All the by-elections were held on one day, January 23, 1986. Every constituency bar one returned the Unionist candidate, the exception being Newry and Armagh where Seamus Mallon of the SDLP ousted Jim Nicholson, now a member of the European Parliament.

Ian Paisley won his Antrim seat with 97.4%, the highest vote figure recorded in a UK by-election since the war. Enoch Powell scraped home in South Down, before losing the seat in the General Election a year later.

The resignation tactic did not work as Thatcher and the Republic’s Taoiseach Garret Fitzgerald decided to go ahead with the Anglo-Irish Agreement anyway. It did not achieve anything very substantial, but paved the way for the peace process and the Good Friday Agreement of 1998 which, lest anyone forget, was overwhelmingly approved by the people of the whole island of Ireland in two referendums north and south of the border.

The point for Scotland is that there are alternatives to a second indyref, but the lesson of history for Yes campaigners here in Scotland is this – make sure you know you are going to win before going to the people again. The lesson from history for May and the Unionists is this – do not oppose a second indyref if, in these Brexit days, that is what Scotland’s people want, otherwise mass by-elections or UDI may result.

Whatever vote does result, the 40 per cent or any other such rule must not be imposed, for the simple reason that it is not democratic.