On Wednesday, the Electoral Commission published its much anticipated reports on the question to be asked in the 2014 independence referendum and on campaign spending limits. On the referendum question, while the Commission found that the question proposed by the Scottish Government – ‘Do you agree that Scotland should be an independent country? Yes/No’ – was easy to understand, to the point, not ambiguous, and did not mislead voters, there were nevertheless substantial concerns about the neutrality of the question. It therefore recommended a minor rewording – ‘Should Scotland be an independent country? Yes/No. It also recommended substantial increases on the campaign spending limits which had been proposed by the Scottish Government, in order to allow campaigning on a scale comparable to that for a Scottish Parliament election. Both recommendations were promptly accepted by the Scottish Government.
Prior to the publication of the report, however, the Scottish Government had been widely criticised for refusing to publicly commit to acceptance of the Electoral Commission’s advice, whatever its content. Both the House of Commons Scottish Affairs Committee and the House of Lords Constitution Committee, in their respective reports on the draft section 30 Order, had urged that the Commission’s advice should be accepted, and on Tuesday the call was renewed in a letter sent to Alex Salmond by the Better Together campaign, signed by 27,385 supporters. Nevertheless, responding to a question from Patricia Ferguson MSP in the Scottish Parliament on Monday, Nicola Sturgeon said ‘I have made very clear the considerable weight that will be attached to Electoral Commission recommendations by the Scottish Government …. I have also made very clear, and will do so again, that there would have to be a very good reason to depart from Electoral Commission recommendations, and any government so doing would have to explain its position to this Parliament. However, given the respective roles of the Scottish Government, the Electoral Commission and the Scottish Parliament, it would be an abdication of my responsibility to the Parliament for me, as a minister, to say what I think of Electoral Commission recommendations before I have even seen them.’
Clearly, the political difficulty that the Scottish Government faced in adopting this stance was that it left itself open to the accusation that it was giving itself an unfair advantage in the referendum process, by reserving the right to reject the Electoral Commission’s advice if it didn’t like what it contained. Was its approach nevertheless constitutionally defensible?
As the Scottish Government has pointed out, its position was no different to that of the UK Government under the Political Parties, Elections and Referendums Act 2000 (PPERA), which provides that the role of the Electoral Commission in scrutinising proposed referendum questions is consultative rather than binding. As has also been pointed out, though, its advice to date has always been accepted.
The more important point, however, concerns the appropriate constitutional roles of independent experts and elected politicians in making decisions in relation to controversial issues. A notable constitutional trend over the past 30 years has been for independent governmental bodies to increase both in number and in decision-making influence. The establishment of the Electoral Commission itself (by PPERA) is part of this trend, and it is one which has brought significant advantages, in terms of producing more informed, transparent and consistent decision-making. In some cases, these bodies exercise important, independent decision-making powers – for example, the Monetary Policy Committee of the Bank of England, in relation to the setting of interest rates, or the utility regulators, and there may be good reasons for them to do so, for instance, in order to reassure markets that key economic decisions are not being influenced by short-term political concerns. Nevertheless, independent decision-making comes at a cost in terms of accountability. While academics may debate the extent to which such bodies are subject to other, compensating forms of control, there is an undeniable diminution of political accountability for the issues within their remit.
Because of this, it is more common for independent experts to be given advisory functions only, so that responsibility for decisions remains with accountable politicians, and this is particularly the case where decisions involve a significant amount of judgment as well as technical expertise – judicial appointments might be a case in point; the role of the Committee on Climate Change another. While we would normally expect the recommendations of such bodies simply to be accepted (and it will often be politically difficult not to), the ability of ministers to reject their advice provides an important constitutional safeguard against poor judgment, and a guarantee of political control on behalf of the electorate. Of course, the potential is always there for ministers to abuse their powers, but the publicity surrounding the process should ensure that this does not occur. In other words, where the decisions of independent experts are binding, political accountability is diminished, but where their decisions are advisory only, political accountability is enhanced.
As far as the Electoral Commission is concerned, it is fairly obvious that the devising of appropriate referendum questions is not an exact science; the Commission's methodology is qualitative rather than quantitative and informed judgment plays a large role. This is even more true in relation to compaign finance rules; here, the Commission itself acknowledges that 'the concepts of fairness and a level playing field are capable of different interpretations in this context'. In constitutional terms, therefore, the Scottish Government was correct to insist upon its right to reject the Commission's advice. Equally clearly, in the circumstances, it was correct not to do so.
Aileen McHarg is Professor of Public Law at the University of Strathclyde