The 40% Rule at the 1979 Devolution Referendum

The 40% Rule at the 1979 Devolution Referendum The 40% rule had a substantial influence on the conduct of the 1979 devolution referendum as well as the actual result. Arguably, without the 40% rule either the 1974-9 Labour government would have been removed from office (with no devolution legislation passed) or the Scotland Act 1978 would have required a simple majority at the referendum and a Yes vote would have delivered a Scottish Assembly. In terms of the campaign, the 40% rule put the onus on the Yes campaign to increase turnout as much as possible as the threshold placed an additional hurdle on achieving a Scottish Assembly. The 40% rule meant that Yes campaigners had to target 1,498,845 votes to surpass the threshold (after discounting some non-voters from the electoral register). On the other hand, the No campaign had the comfort of knowing that abstentions counted as a No vote and could fight the campaign on that basis. Even so, there was no clear sign that the 40% rule would ensure the devolution proposals were defeated though narrowing opinion polls in the lead-up to referendum day suggested a close result (Denver, Bochel and Macartney 1981: 32). Devolution was narrowly supported by 51.6% (1,230,937 votes). It was opposed by 48.5% (1,153,502 votes). The turnout was 62.9% and when the 40% rule was applied it meant that 32.85% of the electorate had voted Yes compared to 30.78% who had voted No. In essence, the argument over the 40% rule was one over thresholds. Should the devolution issue be subject to normal majoritarian rules (50% of the vote plus 1) or to special thresholds because of its effect in changing the constitution and government arrangements? With no written constitution and only ad hoc rules from the 1975 European Community referendum experience, there was little precedent to go on in 1979 though the political environment was a more important influence on the 40% rule than precedent. 1

Born From Dissent As the Labour government had lost control of the devolution legislation in the House of Commons, there was ample scope for dissenting MPs to create havoc with the details of the bill in exchange for their support. However, due to Labour s weak position in the House of Commons and the country, dissident MPs had to be careful they wanted to influence the devolution bill not bring down the Labour government. The proposal for a referendum came from Labour devo-sceptics which the government agreed to in order to progress the bill - as did the 40% rule itself. However, there were other suggestions for thresholds during the devolution bill debates. The Cunningham amendment to introduce the 40% rule was preceded by an amendment by Labour MP for Mitcham and Morden, Bruce Douglas-Mann, which suggested a 33 1/3% threshold for a Yes vote (Bogdanor 1996: 229). The 40% rule was promoted because devolution was seen as an irreversible constitutional change (Bogdanor 1996: 230) even though it wasn t - and the amendment was successful by 166 to 151 votes as Labour rebels combined to defeat the government. The government made some attempt to reduce the threshold requirement by amendments at the report stage of the bill, but these changes were proposed by Labour backbenchers rather than government Ministers and defeated (Bogdanor 1996: 230). After the Cunningham amendment, the Scotland Act 1978 contained the referendum proposal in clause 85(1) plus the 40% clause 85(2): If it appears to the Secretary of State that less than 40% 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 (Scotland Act 1978: 38). The Electoral Register 2

The 40% problem was not just one for devolution campaigners in 1979 it was also a problem for electoral registration officers and for individual voters. The electoral register used for the referendum had been completed on 10 th October 1978. This meant that the referendum was held on a relatively new electoral register though it would still contain voters who had died or moved, but would still count at the referendum because of the 40% rule. It was also the case that the threshold arrangements would be effected by the level of hospital patients, disabled voters and illness, students registered at home and university as well as prisoners. Secretary of State for Scotland, Bruce Millan, made some discount to the 40% rule s impact by providing an estimate of unavoidable non-voting at the referendum. Millan estimated that 90,002 voters fell into this category 49,802 voters who would reach 18 years old after 1 st March, 26,400 voters dead since registration in October 1978, 11,800 students who were double-registered and 2000 prisoners (Bogdanor 1996: 233). Bogdanor also sought to add a series of categories of likely non-voters at the referendum: errors in registration were seen to account for 230,226 non-voters, 39,000 hospital patients; 100,000 seriously disabled people; 150,000 ill at home; and 68,800 effected by moving house (1996: 233). Some of those could have gained postal or proxy votes but the assumption was that most wouldn t. Millan s discounts from the electoral register would have required the Yes side to gain 1,498,845 votes. When Bogdanor s discounts are added this would reduce that threshold to 1,284,754 votes: though this was still higher than that achieved by the Yes side. The 40% Rule in the Campaign The 40% rule was a feature of the campaign in central Scotland. As we can see from the various interviews, letters and articles below. Various participants in the campaign made reference to the 40% clause whether fair or unfair and an article by George Reid MP for Clackmannanshire and East Stirling provided a pretty stark account of the impact of the 40% rule on the electoral roll. For example, No campaigners found the extra threshold both useful and justifiable. In Stirling, No Campaigner and Conservative John Holliday explained: 3

I thought it was reasonable because it is quite a big change to the constitution, the country s arrangements. So you could not really do something like that on a 50% +1 vote basis. It really needed to have a reasonable majority so the 40% rule was reasonable on that basis. (SPA/507). This view was echoed by another Stirling No Campaigner and Conservative, John Stein: The great thing about the 79 one was that you had to have 40% plus one person voting for it, for it to count rather than the simple majority of the few that could be bothered to vote. Anybody who had common sense, as I of course have, would say that that was a good rule. Because why should a really vital change in our constitutional position take place when most of the people cannot be bothered to vote. (SPA/671). Tam Dalyell MP, anti-devolution campaigner and vice-chair of Labour Vote No campaign at the referendum made a similar point in one of his many letters to local newspapers in advance of the referendum: As to the 40 percent rule - put it this way. If 60 percent or more of the electors either positively do not desire an Assembly or can t be bothered to go out and vote for it why should we bring the union to an end, which, warts and all, has served the people of Scotland well for 270 years? (Alloa Advertiser, 2 nd February 1979: 2). George Cunningham MP, a Labour opponent of devolution and the originator of the 40% rule, made a similar point in a letter to the Falkirk Herald: It is clear from letters I have received since a recent STV interview that there are many people who want to hear the case for the 40% rule in the devolution referendum. The 40% rule says that if less than 40% of the people entitled to vote in the referendum vote yes then the government has to place before Parliament an Order, which if passed by the House, will repeal the Scotland Act and stop the setting-up on an Assembly. I stress that even if the 40% is not reached the House of Commons could go ahead with devolution. The SNP has spread the idea that this proposal is an unheard-of device to rig the referendum that dead people will be allowed vote and so on. It never was the case that dead people were allowed to vote and even the SNP representative who attended the meetings that Tam Dalyell and 4

I have had in Dundee, Fife, West Lothian, Glasgow and Motherwell had finally recognised as much. If, instead of inventing these false charges, the SNP was to do some housework for a change, they would discover that many countries impose special tests before the constitution can be changed and there is one country at least Denmark - where the supporters of change need to number 40% of the electorate, just as in my amendment. (Falkirk Herald, 27 th January 1979). Yes campaigners, of course, felt very differently about the 40% rule and its effects. Ian Smith, SNP Candidate and Yes Campaigner in 1979 observed that: Those of us on the Yes side felt very aggrieved, and naturally so, because I remember we spent days trawling through the electoral register to try to eliminate people who were either dead or people who were known locally in the villages to be holiday homes and people who would come to holiday in places like Aberfoyle. One episode which I do remember was there was a form which you had to fill in if you objected to a name or names being on the list and this was submitted to the returning officer at the time. And it was in Perth and I remember having to go - some people who were listed and were known to be absentee. Some of them objected to losing the vote and there was almost like a tribunal that I had to attend where the people appeared said of course that they had every right to be on it and that they were not absentees and they were not holiday homes, that was their main home. And I remember having to go and appear before - I think it was organised by the returning officer and the people who objected to having their names taken off were there and you had to confront them and give the reasons why they should not be on it... I suspect that was common, it certainly happened here and I had to do it, I expect it happened in other constituencies too. There was a feeling of total outrage when you went through the electoral register. At that time there was no particular reason for the returning officer to strike off any doubtful people because if they were dead they were not going to appear on polling day and vote anyway. The maintenance of the register was of secondary consideration, but when the 40% rule appeared that changed everything (SPA/730/11/SNP). In an article in the Alloa Advertiser, Yes campaigner George Reid, MP for Clackmannanshire and East Stirling, pointed to the various problems in the electoral register that had effected him and his wife: 5

My wife Dee and I have just been given four votes in the coming referendum on March 1. Two for our front door and two for our back gate. Two Yes and two No. In effect therefore we are disenfranchised. Naturally we will be voting yes but our two additional votes, which we cannot legally use cancel this out. They count automatically as a No. If we had been anti-assembly of course all votes would count as a No. 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 percent 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 percent of the electorate don t bother turning out in a General Election). So are people on holiday or away on business. Students who have two entries for the roll - one at home and one for college - are disenfranchised unless they are voting No. In which case they have in effect two votes. It is an open scandal. It shows the limits Labour MPs like George Cunningham and Tory allies who introduced the regulation are prepared to go to. If the same rule had applied to the Common Market Scotland would not be in the EEC. If it had applied to Messrs Heath and Wilson neither would have become Prime Minister. A new twist has been given to this macabre situation this week with the discovery of many anomalies like my own. In Perth and Kinross the SNP have successfully contested around 200 entries leaving another 60 (some English owners of holiday homes) to fight through the courts. In Glasgow the SNP have turned up errors of almost 20% in some terraces. So for my own case, my wife and I have lived at our current address for almost 12 years. It is a family home occupies solely by us. When the new register came out we naturally checked that we were on the roll. What we could not be expected to do was check for our names appearing a second time on the register on a different page for an address we don t have. A small lane containing our garage runs to the rear of the house. We have been given votes there too, on a different page of the roll. (Just to make sure we have checked he previous register in the off-chance that the same thing might have happened before. But no, for the first time we have been awarded double votes). I would not go as far to say it smells, but it certainly seems very odd indeed. Since I did not object by December 16 th I am therefore without an effective vote on March 1. How many people fall into that category? Since my case has become known I have had examples of several dozen. It is quite possible that people may go to the polling station on March 1 to vote Yes, totally unaware that somewhere else another vote 6

in their name cancels this out. Or if they are voting no that they have two votes... What can be done about it? First the Government must increase substantially the 2 ½ % waiver it proposes for people who have died. Second the people of Scotland must seize the mettle and come out in droves and vote yes anyway. The question of home rule for Scotland won t go away. But if we win a 70% yes and still lose the referendumbecause of the 40% barrier- I am afraid that Scots English relations may well become embittered. (Alloa Advertiser, 12 th January 1979: 6). An article by journalist Angus Simpson, in the Alloa Advertiser illustrated some of the problems with the reality of the electoral register and its effect on the result through reporting on George Reid s comments on the state of the register: Speaking at Stirling University at the weekend Mr Reid said that he was not surprised to hear that more than 50 of the university s overseas students have votes in tomorrow s referendum. Research by the SNP at the university shows that at least a third of overseas students have somehow got on to the electoral roll. We make no criticism of them. They are very welcome here said SNP Chairman Mr David Mackenzie. But it would be criminal offence for them to vote. Because of that every single one of them is yet another brick in the 40 percent wall. Mr Reid added When Parliament comes to consider the referendum result it will have to allow an enormous discount if it is not to be accused of gerrymandering. (Alloa Advertiser, 28 th February 1979). Tam Dalyell s 2011 autobiography did not focus greatly on the devolution issue but did reflect back on the referendum and the 40% rule. Dalyell expressed some regret about the 40% rule and its effect: With the benefit of hindsight.i have come to believe that imposing a 40% 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% condition was seen as not quite right and downright cheating by others. Undoubtedly it cost the no campajgn votes. How many votes, none of us will ever know. But, in my opinion, it was enough to have given the no campaign outright victory in the popular vote.had there been an outright no, the issue of a Scottish Assembly might have been put to bed for a generation (Dalyell 2011: 185). References Bogdanor, Vernon (1996), Politics and the Constitution, Aldershot: Dartmouth. 7

Bochel, J., D. Denver and A. Macartney (1981), The Referendum Experience Scotland 1979, Aberdeen: Aberdeen University Press. Dalyell, Tam (2011), The Importance of Being Awkward, Edinburgh: Birlinn. HMSO (1978), Scotland Act 1978, chapter 51. 8