Overview
This Bill would give the Scottish Government power to decide that a referendum can be held in Scotland and to set the rules for the referendum. The rules include who gets to vote and how campaigns are regulated.
The Bill would only allow for referendums on issues which the Scottish Parliament has responsibility for. These are known as a ‘devolved’ matters.
There's UK legislation which covers UK-wide referendums. But there's no Scottish legislation to provide a framework for how referendums should be run.
What does the Bill do?
The Bill would allow for Scottish referendums to be held without the Parliament passing a specific Act each time.
Currently, 'primary legislation' (an Act) is required if the Scottish Parliament wants to hold a referendum. An Act is a Bill that’s been passed by the Parliament and been given Royal Assent (formally approved).
Under the Bill, 'secondary legislation' could be used to propose that a referendum on a particular issue should be held. By secondary legislation, we mean regulations that would:
- set out the exact question that would be asked
- decide the date of the referendum.
The regulations would need to be approved by the Parliament before the referendum could be held.
The Bill aims to ensure referendums are fair by making the rules for them clear. For example, setting processes for counting votes and the amount of money spent on campaigning.
You can find out more in the Explanatory Notes document that explains the Bill.
Why the Bill was created
The Scottish Government wants to create a framework for how any future referendums on devolved matters will be held. It wants any referendum to be managed to a high standard. It thinks that having the framework in this Bill will help that.
This Bill does not relate to a specific referendum but on 24 April 2019, the First Minister made a statement to the Scottish Parliament called 'Brexit and Scotland's Future'. In it, she said the Scottish Government would introduce this legislation so that giving people a choice on Scottish independence in the current term of Parliament was an option.
You can find out more in the Policy Memorandum document that explains the Bill.
The Referendums (Scotland) Bill became an Act on 29 January 2020
Becomes an Act
The Referendums (Scotland) Bill passed by a vote of 68 for, 54 against and 2 abstentions. The Bill became an Act on 29 January 2020.
Introduced
The Scottish Government sends the Bill and related documents to the Parliament.
Related information from the Scottish Government on the Bill
Why the Bill is being proposed (Policy Memorandum)
Explanation of the Bill (Explanatory Notes)
How much the Bill is likely to cost (Financial Memorandum)
Opinions on whether the Parliament has the power to make the law (Statements on Legislative Competence)
Information on the powers the Bill gives the Scottish Government and others (Delegated Powers Memorandum)
Stage 1 - General principles
Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.
Committees involved in this Bill
Who examined the Bill
Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.
It looks at everything to do with the Bill.
Other committees may look at certain parts of the Bill if it covers subjects they deal with.
Who spoke to the lead committee about the Bill

First meeting transcript
The Convener
Under item 2, we will take evidence from Scottish Government officials on the Referendums (Scotland) Bill. I welcome Rebecca Whyte, the bill team leader; Penny Curtis, the deputy director of elections and freedom of information; and Colin Brown and Graham Fisher, who are solicitors in the Scottish Government.
Does Rebecca Whyte want to make an opening statement?
Rebecca Whyte (Scottish Government)
No. I am quite happy not to make one.
The Convener
Okay. I also welcome to the meeting, from Newcastle University, Dr Alistair Clark, who will be advising the committee on the bill.
Given that there has been no opening statement, I will start by asking some very simple questions. In simple terms, why has the Scottish Government introduced the bill? What are the bill’s aims and purpose? Does similar legislation exist elsewhere in the United Kingdom? For the purposes of getting it on the record, and to help my fellow committee members, will you answer those questions?
Penny Curtis (Scottish Government)
The bill proposes a legal framework for holding referendums on matters that are within the competence of the Scottish Parliament. Broadly, it is a technical bill that sets out rules, including those relating to the franchise for any referendum, voting and conducting a poll, designation and participation in campaigns, and spending and donations. The bill is based largely on existing legislation in Scotland and the United Kingdom. It draws on the rules that are set out in the UK Parliament’s Political Parties, Elections and Referendums Act 2000 and the Scottish Independence Referendum Act 2013. We started from the basis of looking at the existing legislation, and we reflected on the process that worked well in 2014. The referendum is considered to have been well run, and the legislation has been adapted to reflect changes in practice since then.
The Independent Commission on Referendums recommended putting in place a framework for referendums in Scotland. The recommendation reflected the fact that electoral law is dispersed, so the bill brings it together in a single framework for Scotland. The bill will ensure that we have in place the rules for any future referendum in Scotland, so that, at the point of the framework being used, the debate can be about the merits of the referendum rather than about the technical detail of the rules.
The Convener
Thank you for that general overview, which was very helpful. There are some differences from the 2013 act. Why has the Scottish Government proposed that secondary legislation be used to initiate the question that might be asked, or the date that is set, for specific referendums, rather than primary legislation, particularly given that the parliamentary scrutiny period for primary legislation is much greater, in terms of its length and intensity, than it is for secondary legislation? Why has the Government chosen to go in that direction?
Penny Curtis
The primary reason that the bill proposes that, in relation to the powers, secondary legislation and the affirmative procedure be used relates to the certainty of the timetabling. That will ensure that we have a predictable timetable from the point at which secondary legislation is introduced, and that Parliament has an opportunity to scrutinise that legislation and agree or not with the proposed question, date and so on.
Adam Tomkins
I am sorry, but I did not understand that answer at all. What is it about the timetabling of secondary legislation that makes things clearer than the timetabling of primary legislation and requires you to act in this way?
Penny Curtis
The time for considering secondary legislation is set out in parliamentary procedures, whereas there is a lot more flexibility in the time that a bill can take to go through those procedures.
Adam Tomkins
I see; it is because our standing orders restrict the amount of time that we can spend deliberating on secondary instruments. So, the Scottish Government thinks that it is appropriate to restrict the amount of time that Parliament can spend considering referendum questions rather than having that in primary legislation.
Penny Curtis
No. We are not looking at the issue from the perspective of restricting the time for scrutiny at all. It is very much about predictability, so that we can enable a referendum on a certain timescale.
Adam Tomkins
Our standing orders restrict the time for which Parliament can consider secondary legislation. Is that correct?
Penny Curtis
They certainly put a fixed timetable around that.
Adam Tomkins
Standing orders restrict the amount of time that we can spend considering secondary legislation, and there is no equivalent restriction with regard to primary legislation. Is that correct?
Penny Curtis
That is my understanding.
Adam Tomkins
So, the intention behind section 1 of the bill, which allows the Scottish ministers to make regulations providing for a referendum—including, as the convener said, the date of the referendum and the question—is to restrict the amount of time that Parliament can spend on scrutinising those issues.
Penny Curtis
No; I would not characterise it in that way. That is not the intention behind that decision. It is not about restricting scrutiny. Our driver—
Adam Tomkins
With respect, your answer to the convener’s question—this was not going to be my line of questioning until I heard that answer—was that the reason for the Scottish Government wanting to proceed by way of secondary legislation rather than primary legislation concerned the predictability of timetabling. That took me by surprise. As I said at the beginning of my questions to you, I did not understand it. You are saying that the predictability that you are talking about is a product of the fact that, unlike the case with primary legislation, the Parliament is restricted in the time that it can spend considering the instruments.
Penny Curtis
That is certainly not the intention behind the decision. You are right to say that the decision concerns predictability, but the intention is absolutely not about restricting scrutiny. Clearly, the Parliament has the ability to scrutinise whatever is brought forward in that legislation and to decide whether or not to agree to it.
Adam Tomkins
But the effect will be that there is a restriction on the amount of parliamentary time that is available. That is understood.
What other countries in the world legislate for referendums in this way? That is, what other countries in the world confer on ministers the power to make regulations setting out referendum questions?
Rebecca Whyte
As I am sure you know, there is a wide range of approaches to administering referendums in various countries. It can be difficult to derive exact parallels between legal systems and the way in which referendums are run. In developing the bill, we considered various jurisdictions that have general legislation covering the administration of referendums, including Denmark, Ireland and Poland. Some of them have general legislation that provides for some types of referendums and not for others. For example, in New Zealand, Governments can initiate non-binding referendums—they have citizen-initiated referendums—but that framework cannot be used for binding referendums.
We considered a number of examples in relation to the issue of what a framework does. I cannot at this moment give you specific examples of places that have processes that are exactly analogous to the secondary legislation process that is proposed for the Scottish Parliament.
Adam Tomkins
I know that you cannot do that, because no other country in the western world proposes to construct a framework for referendums in the way that the Scottish Government proposes to do. What is proposed is unprecedented, is it not?
Rebecca Whyte
As I said, I cannot give you a specific example.
Adam Tomkins
Because there isn’t one—there is not a precedent or an example that you can point to anywhere in Europe or in the Commonwealth that enables ministers to set the date of a referendum and the questions that will be asked in the way that is provided for in section 1.
Rebecca Whyte
That is right.
Adam Tomkins
Thank you.
You talked about binding referendums. Is it the intention that referendums that are established under the bill will be binding?
Rebecca Whyte
Because the referendum framework is intended to provide for any referendum that might be held within devolved competence, it is silent on the question of whether referendums are binding. That is to ensure that there is flexibility for the different circumstances in which polls might be run for different decision-making purposes.
Adam Tomkins
Does the Scottish Government understand there to be a difference between a referendum and a focus group or an opinion poll?
Rebecca Whyte
Yes.
Adam Tomkins
What is that difference?
Rebecca Whyte
A way of reframing that question would be to ask what scenarios referendums would be used in. Is that what you are asking?
Adam Tomkins
My understanding is that referendums are devices that decide things, and decisions, by their nature, are binding. Is that the Scottish Government’s view?
Rebecca Whyte
I see what you mean. Given that there might be referendums in different circumstances, we felt that it would not be appropriate to set out in the legislation a singular process that says, “This is how things will proceed once the referendum has been conducted.” The idea is that it will be possible for the framework to be used for different polls, so there needs to be some flexibility on the circumstances and the packaging.
Adam Tomkins
Okay. To be clear, the intention behind the bill is that some referendums that are established under it might be advisory—non-binding—and other referendums that are established under it might be binding, but we are not quite sure on whom they would be binding.
Graham Fisher (Scottish Government)
There is certainly no provision in the framework for making a referendum legally binding in any way, as with the independence referendum in 2014, which was held under the Scottish Independence Referendum Act 2013. That is the legal position.
Adam Tomkins
That is the legal position under the bill as introduced.
Graham Fisher
Yes. As with the referendum under the 2013 act, referendums under the bill would not be binding in that sense but, in any referendum, the decision of the people might have significant political and moral force behind it, especially given that section 1 provides for the referendum to be held “throughout Scotland”.
Adam Tomkins
But, as introduced, the bill does not resolve and does not seek to resolve the uncertainty that exists in the UK at the moment, including in UK law, about the binding nature of referendum decisions.
Graham Fisher
That is correct.
Adam Tomkins
Yesterday—or certainly within the past few days—the constitution unit at University College London published a blog on the bill. I will read out a quotation from that blog, which I will ask you to reflect on. The author wrote:
“I am aware of no well-functioning parliamentary democracy that gives ministers blanket authority to call a referendum by secondary legislation. The proposal”—
he is talking about the proposal in section 1—
“runs counter to the principles for good referendum design advocated by the Independent Commission on Referendums and the Council of Europe. Both emphasise that the decision to hold a referendum is a big one and ought to be subject to exhaustive scrutiny.”
What is the Scottish Government’s reaction to that?
Penny Curtis
We have set out the reasons for our proposing a secondary legislation power. Clearly, the Parliament will want to consider the bill’s provisions, and it might want to take evidence on that issue as part of its scrutiny of the bill.
10:30Adam Tomkins
Do you accept that the proposal in section 1
“runs counter to the principles for good referendum design advocated by the Independent Commission on Referendums and the Council of Europe”?
Penny Curtis
I do not particularly want to get drawn into the pros and cons of the policy that has been set out in the bill; it would not be appropriate for me to do that. You will want to take evidence on that from ministers as the bill goes through the process.
Adam Tomkins
That would not be appropriate. It also would not be appropriate for me to ask you that, and I was very careful not to do so. I am asking whether you accept the view that was published on the UCL constitution unit’s blog that, as a matter of fact, the proposal in section 1 runs counter to established international standards of best practice on referendums, as set out by the Independent Commission on Referendums and the Council of Europe. Does the Scottish Government accept that verdict or not?
Penny Curtis
I am not entirely sure that I accept all that is set out there. As I set out at the start, there is a process for scrutiny and approval of what is in a referendum question, on the timing and so on, and we are not trying to circumvent that with the bill. Having this debate around whether that is appropriate in the bill, and in the consideration of the bill, gives me a degree of confidence that that will be tested as we go through the process.
Patrick Harvie
Adam Tomkins’s initial questions explored the timing. The regulations would be subject to the affirmative procedure. Has the Government given consideration to using the super-affirmative procedure, which would allow more time and flexibility for scrutiny inside and beyond Parliament of any proposed regulations?
Penny Curtis
At this stage, we have not done that, but we recognise that the committee will want to consider that issue as it looks at the bill.
Patrick Harvie
The Government has not ruled that out.
Penny Curtis
It is not in the proposals that have been made or in the provisions in the bill. We recognise that the committee will look at the issue during its deliberations.
Tom Arthur (Renfrewshire South) (SNP)
Good morning. Will you clarify a matter for me on the issue of scrutiny? I have a very simple question, which is for my own benefit. Section 1 says:
“The Scottish Ministers must consult the Electoral Commission before laying a draft Scottish statutory instrument”.
There is further reference to consulting the Electoral Commission in section 3(2)(a), and section 3(2)(b) mentions the need to lay a report before Parliament. Pre-scrutiny would have to take place before any regulations even reached the Parliament. Is that understanding fair?
Rebecca Whyte
That is correct.
Tom Arthur
There is nothing in the bill that would preclude the Government from consulting more widely.
Rebecca Whyte
There is nothing in the framework that excludes that possibility.
Tom Arthur
So, there would be an extensive period of consultation with the Electoral Commission, the potential for further consultation more widely and, via the process for secondary legislation, a 22-day period during which the Delegated Powers and Law Reform Committee would scrutinise that legislation thoroughly on technical grounds. After that, there would be a further 40-day period for a lead committee—that would likely be this committee—to report on the legislation. During the committee’s scrutiny, a motion to annul an instrument subject to the negative procedure could be laid, or, if the instrument is subject to the affirmative procedure, the committee could recommend that it not be agreed to. Is my understanding correct?
Rebecca Whyte
Yes.
Tom Arthur
I just wanted to clarify what room the Parliament had for scrutiny. That is fine; thank you.
Willie Coffey
Was the referendum on membership of the European Union also advisory?
Rebecca Whyte
Yes.
Willie Coffey
Thank you. I want to ask for your views about overlap with reserved matters. The bill proposes a 28-day purdah period and covers the control of financial donations during a referendum. It also talks about electoral registration: how systems might cope with potential surges and how the rules would be respected in relation to the UK Government, which would have a clear interest in a referendum process in Scotland. In addition, the bill seeks to address how we manage concerns about broadcasting, data protection and so on. Can you give us a flavour of your thoughts about potential overlaps with reserved matters in that respect?
Rebecca Whyte
I am happy to do that. I will take the point about registration first.
As you say, aspects of the registration system—most notably, the website through which voters register—are reserved to the UK Government. Since the devolution of election powers in the Scotland Act 2016, the Scottish Government has been working with the UK Government to ensure that, where our policy intersects with reserved matters, there is good co-operation and close joint working to ensure that the system, while it is controlled by the UK Government, is able to flex to allow for Scottish policy decisions. The best example of that is the specialised user journey for 16 and 17-year-olds through the website, which was put in place after the Scottish Elections (Reduction of Voting Age) Act 2015. Registration issues would be a matter of negotiation and co-operative working with the UK Government.
On the issue of purdah, the framework includes provisions that are analogous to some of the provisions in the Political Parties, Elections and Referendums Act 2000, which limit the activities that public bodies can undertake in the 28 days before a poll. Within the competence of the bill, those provisions can legally bind only Scottish public authorities. If we were organising a poll with a UK dimension, any restriction on UK public bodies would be done by negotiation with the UK Government, as happened in the Edinburgh agreement and as was respected by various public bodies.
With regard to some of the aspects around donations and permitted participants being able to check registers, they will, for UK registers, have access to publicly available versions of the register. Any further access would require the agreement of the UK Government.
Willie Coffey
Suppose that some sort of pressing conflict arose during the process. How quickly could one party influence or stop a process with which it was unhappy, instead of waiting until it was too late, post the process, to complain about something? How quickly could the system respond to concerns that may be expressed by either side?
Rebecca Whyte
Is that in relation to breaches?
Willie Coffey
For any reason. Imagine that there was a broadcasting issue, or we discovered that there was a huge financial donation coming from somewhere and any party raised an objection to that. How quickly could the system respond in order to deal with that during the process?
Rebecca Whyte
During the period in which the Electoral Commission is acting as regulator, it monitors campaign activity. To use your example, if it was felt that a donation was suspicious, that information could be passed to the Electoral Commission and it could take action as it considered appropriate.
The bill includes provision for a stop notice, which is effectively a notice to a campaigner or campaign group during the campaign period that the activity that they are undertaking is in breach of the campaign rules and that they should not do it. There is some provision for ensuring that any issues that are identified during a campaign are dealt with. The Electoral Commission is very familiar with dealing with reports of any issues to do with campaign regulation from its work on other elections and referendums.
Willie Coffey
Did you touch on broadcasting?
Rebecca Whyte
Yes.
Graham Fisher
The legislative framework for broadcasting would remain within the control of the UK Government anyway, and the detail is likely to be subject to the broadcasting regulators, as was provided for in the section 30 order in relation to the independence referendum. Similar provision could be made by a Scotland Act 1998 order, whether under section 104 of the act or otherwise, to provide for broadcasting regulation if the UK Government agreed in consequence of the framework bill.
Willie Coffey
So the Scottish Government would have to obtain agreement.
Graham Fisher
Yes.
Rebecca Whyte
Yes.
James Kelly
Section 3 is on the interpretation of referendum questions. Section 3(5) states that the Electoral Commission has to publish a report on the wording and “intelligibility” of any question, but section 3(7) goes on to say that the whole of section 3 does not apply if the Electoral Commission has “previously published a report” on the question or has suggested the wording of the question or statement.
Ahead of the 2014 independence referendum, the Electoral Commission published a report on the question that was being considered. Section 3(7) could be interpreted as saying that that report stands and that the Electoral Commission does not have a role in looking at the wording of the question or statement in any new independence referendum. What is the policy intent?
Penny Curtis
The policy intention is that, where questions have already been tested and used and are familiar and understandable to voters, there should be no requirement to test again. The process of question testing is quite expensive—it probably costs in excess of £100,000. Our main policy intention in that regard is not to do anything that gets in the way of voter intelligibility around the question.
James Kelly
I gave the example of another independence referendum and the Electoral Commission’s role in the 2014 referendum. Would the Electoral Commission be asked to look again at the question and any potential statement?
Penny Curtis
The framework would not require ministers to get the commission to test the question again if they were seeking to use the same question again.
James Kelly
That is clear, but I think that there will be an issue about that—it is a political issue.
Emma Harper
I am interested in the length of referendum periods. There have been various periods, such as 10 weeks, 16 weeks or 14 and a half weeks. Obviously, we need to ensure that spending and donations are transparent, traceable and clear. Is it the intention to follow what the Electoral Commission recommends, which is a 16-week period, or would there be flexibility? [Interruption.]
The Convener
Emma’s laptop says, “Okay.” Is that the official answer? [Laughter.]
Rebecca Whyte
As the framework is designed to accommodate a range of possible referendums, the referendum period is not specified in the bill. That would be set by the regulations that establish a particular poll.
Emma Harper
I have a wee supplementary question about the issue of binding versus advisory referendums. Could we ask a question that was based on a reserved matter? For instance, Scotland might wish to use a public health policy relating to drugs and alcohol—the Scottish Affairs Committee is looking into that right now. Currently, drugs policy is reserved to Westminster. Under the bill, could a question be asked that is based on a reserved matter as a way to gather information from people in society that would be stronger than asking a focus group but would not be binding because the matter was reserved? Is that an understandable example?
Graham Fisher
The basic answer is that because the framework in the bill is intended to be used for questions within the competence of the Parliament, it would not allow a question about a reserved matter.
10:45Alexander Burnett
Forgive me if I have missed it, but the most important bit—how the winner is decided—is missing and does not seem to be provided for in the bill. Will you point me to the bit of the bill where that is specified? If it is not specified, please tell me how the winner is decided.
Colin Brown (Scottish Government)
It is decided by those who analyse the outcome of the vote. In an advisory referendum, a result is produced and those who look at it make of it what they wish.
Alexander Burnett
I thought that it was said earlier that the referendum could be binding or advisory.
Colin Brown
If it was binding, the rules about its binding nature would say what was to happen.
Rebecca Whyte
The bill as drafted does not include rules that specify how a referendum would be legally binding in the sense that people would be legally obliged to follow the result. The bill does not set out any provision for additional majority thresholds or other ways of approaching the issue, which means that, according to the bill as drafted, it would be a simple majority.
Alexander Burnett
So if it is not specified in the bill, the thresholds for turnout, victory, the qualifying majority and so on would be in section 1, at the discretion of the minister.
Rebecca Whyte
The bill as drafted does not make provision for those matters as part of the regulations.
The Convener
Did the Scottish Independence Referendum Act 2013 include such a provision?
Graham Fisher
No—there was no provision in that act, either. It simply made provision for the vote and the announcement of the outcome.
The Convener
Did the referendum on the EU contain such a provision?
Graham Fisher
No.
Alexander Burnett
Given all the discussions that took place for the previous referendums about what the thresholds should be, have there been any discussions with ministers on that issue? Have they asked you to look for examples in other countries of how a majority has been defined?
Penny Curtis
We have not specifically looked at questions around what different thresholds or turnout might apply, but the fairly consistent approach of ministers has been for a straight majority in the outcome of the results.
Alexander Burnett
Is there no plan for that to be specified?
Penny Curtis
We have no plans to do that.
Colin Brown
There was some discussion before the 2014 poll about what would happen if the vote produced a dead heat. The 2013 act would not have answered that question.
I could be wrong but, from memory, the only legislation for a referendum in the UK that mandated a specific outcome was the legislation for the 2011 alternative voting referendum, which mandated the Government to introduce some legislation in the event of a majority in favour of a particular proposition.
Patrick Harvie
Given that there are certain things that the framework and legislation for a referendum need to do, such as explain how the referendum is conducted, what the rules for participants are, how the count is carried out and the result announced and who carries out those functions, is it the Government’s intention to say that the decisions about what to do with the result are political judgments? For example, it would be for the Government of the day to say that it would honour the decision of the people if the result was a simple or two-thirds majority and would restrict its actions if there was no majority, but, as that is a political judgment, it should not be set out in the legislation or framework. Is that the intention?
Penny Curtis
Having that discussion in a political or parliamentary space is certainly the approach that has been used in most referendums to date.
Patrick Harvie
That would be quite normal.
Rebecca Whyte
Yes.
The Convener
Adam Tomkins has a supplementary question.
Adam Tomkins
My question is not on the binding nature of the result, but on the threshold issue, which Alexander Burnett asked about. If a minister wanted to use the section 1 power to put a question in a referendum, could they set a threshold at more than 50 per cent in the regulations?
Rebecca Whyte
That would not be under section 1; it would be under section 2.
Adam Tomkins
Right—thank you for that. Could a minister, using regulation-making powers under the bill, establish a referendum in which the threshold would not be 50 per cent plus 1, but higher—or, indeed, lower—than that? The threshold would therefore be a question for ministerial regulation rather than primary legislation.
Graham Fisher
Certainly, but Parliament would have control over the affirmative regulations and would have to pass that proposal.
Adam Tomkins
There is no like power in the Political Parties, Elections and Referendums Act 2000, is there? Ministers do not have powers under the 2000 act to change the threshold or, indeed, turnout requirements in the way that they would have under the bill if it were passed in its current form.
Graham Fisher
The 2000 act certainly depends on other legislation that provides for the mechanism for the vote, although there are some ministerial powers in it relating to what can be applied.
Adam Tomkins
You said “other legislation”. Do you mean other primary legislation?
Graham Fisher
Yes. The 2000 act basically relies on other primary legislation although, as I have said, there are some regulation-making powers.
Adam Tomkins
Let us be absolutely clear. Ministers have the potential power under the bill to set threshold requirements or minimum turnout requirements for referendums established by regulation under it, and there are no like powers in the UK legislation.
Graham Fisher
Yes—provided, obviously, that Parliament agreed to those regulations, as the affirmative procedure is involved.
The Convener
Neil Bibby has questions on franchise issues.
Neil Bibby
Obviously, the bill will overlap with the forthcoming electoral reform and franchise bill. When can we expect that to be published?
Rebecca Whyte
The Scottish Elections (Franchise and Representation) Bill has now been introduced and published, and the electoral reform bill is scheduled to be published shortly—that is probably my best estimate on the timing.
Neil Bibby
Okay. On the franchise, the bill has been drafted while the UK is a member of the European Union. Is it suggested that, if and when the UK leaves the European Union, all EU citizens who are resident in Scotland will have a vote in all future referendums in Scotland? What about non-EU citizens who are resident in Scotland—for example, people from Canada, Australia, New Zealand or America?
Rebecca Whyte
It is clear in the bill that EU citizens would be included in the franchise, as currently happens. Ministers have been very clear in many public statements that their intention is to keep EU citizens in the franchise for all devolved elections. That is a clear policy statement.
Neil Bibby
Even if we leave the European Union?
Rebecca Whyte
Yes. I am drawing on a previous job, but my understanding is that there has been quite a lot of consideration of how to do that and that, in a number of Brexit scenarios, EU citizens will continue to be allowed to register and vote in Scotland.
Neil Bibby
But not citizens of Canada, Australia, the USA and New Zealand who are resident in Scotland.
Rebecca Whyte
I am sorry—I will come to that. The Scottish Elections (Franchise and Representation) Bill, which has been introduced in the Scottish Parliament, includes proposals to extend the franchise to nationals of all countries who are legally resident in Scotland, including people from New Zealand. The franchise in the Referendums (Scotland) Bill is set to what the current local government franchise is. It is hoped that the Scottish Elections (Franchise and Representation) Bill will amend the local government franchise.
Obviously, we did not want to prejudge Parliament’s scrutiny of that legislation—it is an important debate, and the Scottish Elections (Franchise and Representation) Bill is subject to a supermajority. Clearly, the Parliament will have a lengthy discussion about the merits of the proposals in that bill. Once it has concluded its parliamentary passage, there will be the ability, under powers in the bill once enacted, to update the legislation to reflect that change in electoral law. In his statement to the Parliament, Mike Russell was clear that his intention is to do that to ensure that the franchise for referendums continues to match the local government franchise.
Neil Bibby
You mentioned the local government franchise. We are talking about referendums in Scotland, but, in times past, local authorities have organised referendums, such as the Strathclyde water referendum and the referendum on the congestion charge. What is the legal position on local authorities running referendums? Could the Referendums (Scotland) Bill impact on them?
Rebecca Whyte
The bill provides for referendums that are held across the whole of Scotland. It does not facilitate referendums that are held in single or multiple local authority areas. Existing legal provision helps local authorities to do that. Given the weight and gravity of some of the rules, particularly on the campaign side, and taking into account wider policy around community empowerment and democratic engagement, it was felt that it would be incredibly heavy handed if local referendums had to follow some of the rules in the bill.
Neil Bibby
However, there are still provisions for local authorities legally to hold referendums.
Rebecca Whyte
Yes, the bill makes no change to that.
Colin Brown
The bill has no impact on that. Obviously, the bill will be out there and local authorities can look at it and decide how they design their local referendums, but it leaves that for local authorities to determine in local circumstances.
Neil Bibby
Thank you.
Murdo Fraser (Mid Scotland and Fife) (Con)
I apologise for arriving late. I was moving amendments to the Transport (Scotland) Bill at the Rural Economy and Connectivity Committee, so I missed the start of the session.
I will ask about the policy intent behind the bill. We know that the Scottish Government has talked about the prospect of an independence referendum. Have ministers discussed with you other issues that they might want to put to a referendum?
Penny Curtis
No. Ministers have not talked to us about other issues, but they have been clear about wanting to have the framework in place so that it is available for whatever issues come up in the future.
Murdo Fraser
Thank you. That is helpful.
In other countries, such as Switzerland, there is a tradition of putting issues to referendums—or, to be precise, referenda. Do you get a sense from Scottish ministers that there is an interest in pursuing more referenda? Is that the direction that we might go in?
Penny Curtis
Ministers have not made any statements about how they see referendums being used more, less or in exactly the same way. They have been clear about recognising that they have a legitimate place in democratic decision making and involvement in Scotland.
Murdo Fraser
You have given me an interesting response. What is that place?
Penny Curtis
I am just being thoughtful about how I set that out. Clearly, ministers have previously used a referendum on an issue of importance in Scotland. I point to that as an example.
In her statement at the end of April, the First Minister announced that we were going to bring forward this bill and she set out other ways in which she wanted to involve the people of Scotland in thinking about the future of the kind of country that Scotland is. Beyond that, I cannot offer more around your question.
11:00Murdo Fraser
That is fine. You have just clarified that, as far as you are aware, nothing else—other than independence—is in contemplation that ministers might want to put to a referendum.
Penny Curtis
Nothing that ministers have talked to us about.
Murdo Fraser
Thank you.
The Convener
Patrick Harvie has a question on transparency.
Patrick Harvie
Earlier, Emma Harper asked some questions about donations. I wonder whether we could explore those and also the questions of publications and campaigning. Has there been an attempt to learn lessons from the two recent big referendums that took place in 2014 and 2016? Some of the concerns about those referendums revolved around so-called dark money and the lack of ability for members of the public to know who was spending what and how. If there have been attempts to learn lessons and to implement changes, could you pick out for me what specific changes have been made, compared with how we conducted the 2014 referendum, to take account of such concerns?
Rebecca Whyte
I will talk about the two recent referendums in turn. The draft referendum bill that we published for consultation in 2016 included a number of updates that were intended to respond to issues that had emerged from the 2014 referendum and pick up on issues from the Electoral Commission’s report on the conduct of that poll. Subsequent changes to that bill, which was then transformed into the one that we are discussing today, picked up further points from electoral stakeholders and the wider debate. Among those updates, I highlight the one on online imprints, on which the drafting that was included in the 2013 act was refined to capture campaign activity more closely rather than restricting individual freedom of speech. There have also been updates to other aspects of campaign regulation.
I turn to the EU referendum, which, as Patrick Harvie said, significantly increased interest in and attention on referendum campaign rules and concern about the ways in which those rules might be manipulated. We have looked at the recommendations of the Electoral Commission and other electoral bodies and groups with an interest in the space. It is fair to say that some of what we might call the policy remedies to those concerns are still very much under development by bodies such as the Electoral Commission. The debate on how best to go about improving electoral legislation as a result of the lessons learned from those polls is on-going. As Mr Russell set out in his statement, we are interested in hearing comments on the bill to help us to consider how we can continue to ensure that it meets our ambition of being of a gold standard.
Patrick Harvie
Do you think that that is achievable within the devolved powers, or are there concerns about the limits on how the Scottish Parliament can legislate to address such concerns?
Rebecca Whyte
There is a difference between elections and referendums with regard to how the rules are devolved. Within the powers of the Parliament, there is decent scope to make a number of improvements to ensure that the framework is as robust as it can be.
Patrick Harvie
I will give an example. In 2016, large amounts of money were spent on online advertising, including graphics that were created by AggregateIQ, and on the leave campaign. Much of that been criticised as being extremely misleading or containing outright lies. Obviously, that campaign would refute such allegations, but they have been made.
Political advertising is not regulated, and it would clearly be outwith our devolved competence to try to change the exemption that prevents the Advertising Standards Authority from doing so. However, if I read it correctly, the reservation in the Scotland Act 1998 on misleading advertising relates to consumer protection and trade and industry. Would it be within our devolved competence to say that we were going to regulate misleading political advertising?
Graham Fisher
My initial reaction is to say that it is complicated. [Laughter.] Certainly, the broadcasting framework, including the rules on political advertising in that sense, is reserved. As I mentioned earlier, the application of the bill would depend on using reserved powers, with the agreement of the UK Government under a section 30 order to make regulations for broadcasting, which is required. That said, there is quite a lot of leeway about what the framework can provide for within the devolved powers. There are other complications and restrictions on that—for example, the Parliament’s making any provision in relation to the BBC is completely outwith its competence, so its ability to do that would depend on provision being made in orders under the Scotland Act 1998. Any particular provision would have to be considered very carefully and explored with the UK Government as necessary to ensure that something robust and reliable could be put in place.
Patrick Harvie
Let us set aside broadcasting for a moment and imagine that there was a referendum on banning cheese. If I were campaigning against that and saying, “If we ban cheese, everyone in Scotland will starve,” that would be a lie and it would constitute misleading advertising. People might be unhappy that they could not eat cheese, but they would not starve. Would it be within our devolved competence to say that people could not publish, in the print media, a misleading advert in that sense? I know that that is a silly example, but I could not think of a better one.
Graham Fisher
I think that I can say yes to that.
Patrick Harvie
It would be devolved.
Graham Fisher
If it were in the print media, I think that that is correct. However, I would want to reflect on the detail of any particular proposal.
Patrick Harvie
What about online?
Penny Curtis
As it stands, the bill regulates matters that happen online. It is when we get into the restriction on political advertising, about which there is particular provision on broadcasting, that we run into the reserved areas.
Patrick Harvie
Thank you.
Adam Tomkins
I have two mop-up questions arising from other things that you have said this morning. Does section 4 of the bill require a two-thirds majority in the Parliament in order that it can be passed?
Rebecca Whyte
We are clear that the bill does not engage the supermajority provisions in relation to franchise, as the protected subject matter is about the Scottish Parliament franchise rather than the local government one.
Colin Brown
And Scottish Parliament elections.
Rebecca Whyte
Yes, of course. I am sorry—I was thinking particularly about the franchise and not section 4.
Adam Tomkins
Thank you. I want to explore your answers to Murdo Fraser’s questions, which were about the issues—other than independence—on which referendums might be held in Scotland. What would happen if a minority Government were unable to get its budget through the Scottish Parliament? Could a minister then lay regulations, under the act that the bill would become, to put that budget to a referendum? Could such regulations specify that the outcome of that referendum would bind the Parliament?
Graham Fisher
I suppose that that would be the case if the Parliament approved the affirmative regulations.
Adam Tomkins
So the power in sections 1 and 2 is potentially so broadly drafted that ministers would be able to use it, subject to the affirmative procedure, to bypass a vote in Parliament in which the budget might be voted down. Thank you. I have no further questions.
The Convener
Graham, I see that you are hesitating and shaking your head.
Graham Fisher
I was going to say that I do not see how that process bypasses Parliament.
The Convener
If you need to reflect on that and come back to us, please do so.
Colin Brown
I suppose that that would be the case if the Parliament saw that as a way of bypassing a deadlock and invited ministers to bring such regulations.
The Convener
I thank our witnesses very much for coming along today and giving us their evidence. I suspend the meeting for about 10 minutes to allow for a change in witnesses.
11:09 Meeting suspended.11:17 On resuming—
26 June 2019

26 June 2019

4 September 2019

11 September 2019

18 September 2019

25 September 2019
Delegated Powers and Law Reform committee
This committee looks at the powers of this Bill to allow the Scottish Government or others to create 'secondary legislation' or regulations.
It met to discuss the Bill in public on:
10 September 2019
19 November 2019
Debate on the Bill
A debate for MSPs to discuss what the Bill aims to do and how it'll do it.

Stage 1 debate on the Bill transcript
The Presiding Officer (Ken Macintosh)
The next item of business is a debate on motion S5M-19743, in the name of Michael Russell, on the Referendums (Scotland) Bill at stage 1.
14:21The Cabinet Secretary for Government Business and Constitutional Relations (Michael Russell)
I thank the Finance and Constitution Committee and the Delegated Powers and Law Reform Committee for their consideration of the bill. I thank their conveners, Bruce Crawford and Graham Simpson, for their unfailing courtesy, and their members, for the positive nature of the discussion that we had. We had a good debate about the bill in both committees and I hope that that tone will mark all our contributions to today’s debate. I am not looking at Graham Simpson in particular, but if the cap fits, no doubt he will wear it.
Adam Tomkins (Glasgow) (Con)
Will the member take an intervention?
Michael Russell
If I can be allowed to make a little progress beyond the first paragraph, that would be helpful.
The Scottish Government will provide a response to the lead committee before the start of stage 2. I make it clear that I am seeking the maximum and widest possible support for the bill and I hope that I will indicate in what I say today how open I am to changes to the bill.
Adam Tomkins
In his opening remarks, the cabinet secretary talked about the courtesy of the Finance and Constitution Committee and the Delegated Powers and Law Reform Committee. Has the Government matched that courtesy by publishing its response to the Finance and Constitution Committee’s report?
Michael Russell
I am sorry that Adam Tomkins did not listen to the paragraph that I have just read, because it gave the answer to his question. The Scottish Government will provide a response to the committee before the start of stage 2, and it will be a positive response.
The purpose of the bill is to put in place a standing framework of conduct and campaign rules that could be applied to any national referendum in Scotland. My intention is that the rules will meet the highest standards of electoral administration and regulation and reflect international best practice. That will ensure that the debate on a future referendum concentrates on the merit of the issue, not the process.
There is existing legislation that sets out the rules and approaches to referendums held in Scotland, but there is no such Scottish legislation. This bill, therefore, addresses a specific gap in the devolved legislative landscape, which is important considering that we are responsible for our own franchise. I am pleased that the committee has recognised the importance of the work and has unanimously supported the policy intention of the bill. I am sure that the Westminster maxim that the vote follows the voice—and vice versa—will, therefore, be followed.
As with all elections, the needs of voters should be at the heart of our considerations. By establishing a consistent set of rules and aligning those with rules familiar to voters from other polls, we will ensure that it is as easy as possible for voters to participate.
As I indicated when I gave evidence to the Delegated Powers and Law Reform Committee and the Finance and Constitution Committee, I am always open to alternative approaches to aspects of any bill for which I am responsible, where those would more effectively facilitate the policy aims. I therefore welcome the suggestions made by the finance committee on ways to improve the bill.
The committee recommended that the bill be changed to mandate that referendums on constitutional matters must be taken forward by primary legislation and that other referendums should normally require primary legislation. I am happy to accept the committee’s recommendation that changes should be made to section 1 of the bill.
I agree that, normally, a short bill should be the way to trigger a referendum. For the avoidance of doubt, I can confirm that any proposal for a future Scottish independence referendum, for example, should now require a short bill.
I will also reflect seriously on the second question that the committee posed for me, which is whether it is appropriate for some less contentious referendums to be triggered by secondary legislation. I will bring forward further details of my approach before stage 2.
One thing that would be set by the trigger legislation would be the regulated campaign period for the poll, which is also referred to as the referendum period. The committee heard evidence that suggested that a default period should be set. I have always been open to setting a default campaign period, and I am convinced by the evidence that has been put forward that it is in the interests of voters that that should happen and that the period should be 10 weeks. Therefore, I intend to move an amendment at stage 2 to set that default.
Voter information and engagement before and during any referendum campaign is an important matter, as is the scope of restrictions on publications in the days leading to the poll—which, of course, the Scottish Parliament is presently suffering. The Scottish Government works in close partnership with other agencies, such as Education Scotland, to ensure that young voters receive appropriate education in citizenship and political literacy. Electoral stakeholders also undertake specific work to engage with young voters on registration matters. There is a clear role for specific organisations to provide information during the run-up to the poll. We will therefore make changes to the provisions on pre-poll publication restrictions to ensure that the Scottish Parliamentary Corporate Body can continue its business as usual and to allow electoral registration officers to continue their work on promoting voter registration.
The committee has made a number of recommendations on the conduct of polls. I greatly value the expertise of electoral administrators and the Electoral Commission in delivering elections and referendums. We will give careful consideration to the recommendations of the Electoral Commission and other stakeholders on possible refinements to the conduct rules. I can confirm that I will lodge amendments on a number of technical issues, such as to require the chief counting officer to consult with the Electoral Commission on issuing directions. I reiterate my strong intention that administrators should have the appropriate time and resources to undertake their duties to the highest standard.
We have made it clear that the Scottish Government will fund the necessary arrangements for a referendum that is held under the framework. We have reflected on the feedback from stakeholders and have made specific provision in the bill to account for areas of additional costs, such as any additional registration costs that might fall on electoral registration officers. My officials will continue to work with administrators during the implementation of the bill to ensure that they receive all the support that they need to deliver any future poll, which has been promised.
I intend to work with the SPCB and the Electoral Commission to ensure that the funding arrangements in the bill are acceptable and align with the conversation that the Parliament is due to have on the Scottish Elections (Reform) Bill over the coming months.
I will respond positively in due course to the committee’s request for additional information on the costs that are set out in the financial memorandum.
I turn to the recommendations concerning the campaign rules. It is imperative that any electoral event is properly regulated.
Neil Findlay (Lothian) (Lab)
Before the cabinet secretary moves on, will he give us examples of other referenda that might happen? What type of issues might be covered?
Michael Russell
A number of examples were, of course, given during the discussion of the matter in the Delegated Powers and Law Reform Committee, of which Neil Findlay is a member, and in the—
Neil Findlay
I am not a member of it.
Michael Russell
Mr Findlay should allow me to finish. They were also laid out in the discussion in the Finance and Constitution Committee. For example, a range of issues might arise from the work of the citizens assembly that could be considered. That happened in Ireland. I will not go through a list of possibilities, but it is clear that possibilities were discussed and could continue to be discussed.
Mike Rumbles (North East Scotland) (LD) rose—
Adam Tomkins rose—
Michael Russell
A man of such imagination as Mr Findlay, and Mr Tomkins and Mr Rumbles, who have now risen, will have proposals. I have no idea what they are, but I welcome hearing them.
Adam Tomkins
In response to Mr Findlay’s question, the cabinet secretary talked about referendum proposals from the citizens assembly. Why is there no provision in the bill for anything relating to a citizen-initiated referendum?
Michael Russell
Because the assembly has made no such proposals, and it is only just under way. Were it to make proposals, they could be fed in through the Government or by other means. It should be remembered that the citizens assembly is reporting to the Parliament and the Government, so there is a route for that to happen.
I will take an intervention from Mr Rumbles.
Mike Rumbles
I thank the cabinet secretary for giving way. I am not a member of the Finance and Constitution Committee and neither are any of my Liberal Democrat colleagues, so we are unaware of the examples that the cabinet secretary set out to it. Will he do that again now for the benefit of members?
Michael Russell
I said that there were discussions; I did not say that I set out examples. I commend the wonderful Official Report of those committee meetings. They will contain all the information that Mike Rumbles seeks, and I am sure that he will find the time to peruse it.
I turn to the recommendations concerning the campaign rules. The experience of the 2016 European Union referendum demonstrated that campaigning is changing, and not always in a way that benefits voters. If we are to provide the space for rational, respectful debate of the type that has just been demonstrated, we must change our approach to regulating campaigning.
A key area of development is the transparency of online campaign materials. In 2014, Scotland led the way by mandating that online campaign materials needed to have an imprint showing the name and address of the person who was responsible for the material. The experience of innovating in that area provided valuable information about how to improve the approach.
The bill builds on the experience of 2014 by focusing regulation more closely on campaign material itself. I welcome the committee’s support for changes to the imprint rules, and intend to lodge amendments to make a number of adjustments to those provisions. Those adjustments, taken alongside other changes to the enforcement regime, will give the Electoral Commission additional regulatory tools. It will then be able to focus more closely on monitoring campaign activity.
In particular, I intend to remove the “reasonably practicable” exemption for campaign material, which will incentivise online companies to continue to innovate to ensure that material can always be clearly identified as campaign material.
I have also carefully considered the other recommendations regarding excluding individual opinions from the scope of the provision. I intend to lodge an amendment to exempt personal opinion from the imprint rules and, therefore, focus the imprint requirement more closely on campaigners. That will ensure that individuals are not deterred from participating.
Another key element of the regulatory regime is the penalties that can be applied. When I gave evidence to the Finance and Constitution Committee, I said that a major increase in the maximum civil fine was required. I intend to lodge an amendment at stage 2 to increase the maximum fine from £10,000 to £500,000, which indicates the seriousness with which the matter is taken. That will significantly strengthen the powers of the commission and act as a deterrent to breaches of the rules.
I also intend to accept other recommendations made by the commission to change the procedure for some offences in the bill. Taken together, the changes will help to deter those who might consider breaking the rules and ensure that those who break the rules are suitably sanctioned. The experience in the 2014 Scottish referendum was positive, but it was not positive in the 2016 United Kingdom-EU referendum.
The Electoral Commission has made a number of recommendations on donations, including on the frequency of reporting and assets held. However, from discussions with the commission, I understand that further work needs to be undertaken before it is able to recommend a specific set of measures. We will continue to work with it on those matters, and we look forward to developing further refinements when appropriate.
With that in mind, I am heartened that the committee supports the objective of ensuring that the bill remains a dynamic framework that can be responsive to changes in campaigning and electoral administration. The provision in section 37 addresses a specific concern of the electoral community, but I accept the recommendation of the committee to consider how to narrow the breadth of that delegated power. I will lodge a suitable amendment at stage 2.
I turn to the one area in which the committee and I have a difference in opinion. We all believe that all questions should be tested before use. That was the case in the only referendum for which this Parliament has so far taken responsibility, and the process resulted in the changing of the proposed question for the 2014 independence referendum. That question was used not only on 18 September 2014, but in 58 opinion polls over the past five years since then. Polling evidence from Progress Scotland shows that the question is well recognised and regarded as fair. Moreover, 77 per cent of respondents in a recent poll said that they would be satisfied if it was asked again, and only 10 per cent disagreed with that.
However, questions will go out of use and require to be altered as time passes. Therefore, questions should have a shelf life, which might be the duration of two parliamentary sessions. I will lodge an amendment to achieve that at stage 2. [Interruption.] I think that members should wait until I have concluded.
Some of those who propose testing every question, even those that have been tested before, do so out of principle, which I respect. I entirely accept that it is right for me to look at the issue again in the light of those views and the evidence that the finance committee has received. I am therefore in agreement with the committee that I should discuss this matter with the Electoral Commission and come back at stage 2 with any proposals that may arise from those discussions. I am happy to commit myself to doing so in the spirit of trying to reach an agreement that will be acceptable to those who take a positive view of the bill and want it to go forward with the widest support, which I certainly do.
Neil Findlay
Will the cabinet secretary give way?
Michael Russell
No, I am almost finished.
The bill seeks to establish a high-quality set of rules developed specifically for Scotland, which will ensure that the conduct of future referendums is robust, transparent and in the interests of the voters. I thank both committees for their work.
I move,
That the Parliament agrees to the general principles of the Referendums (Scotland) Bill.
The Presiding Officer
I call Bruce Crawford, convener of the Finance and Constitution Committee, to speak on behalf of the committee.
14:35Bruce Crawford (Stirling) (SNP)
One of the ambitions of Scottish devolution was to create a new politics based on a much more consensual approach rather than the more adversarial style of politics that was seen at Westminster. That was perhaps always just a bit idealistic but, my goodness, do we need more consensual politics at this time—perhaps more so now than at any other time in my life. I am therefore glad to say that the Finance and Constitution Committee was able to come to a consensus and to produce a unanimous stage 1 report on the Referendums (Scotland) Bill.
That demonstrates quite clearly that it is still possible for colleagues right across the political spectrum to work together constructively and collaboratively to come to a conclusion. Frankly, if someone had asked me at the beginning of our evidence-taking process whether such an outcome was achievable, I would have been sceptical about that.
I therefore warmly thank my colleagues on the committee for the spirit in which they approached our scrutiny of the bill, particularly their collective willingness to reach a consensus based on the evidence. That enlightened approach is very welcome, given the voracious cynicism and increasing public distrust that threatens to undermine our democratic values. I believe that the report is an excellent example of good scrutiny based on a detailed examination of expert evidence.
It is clear to me, as I am sure it is to the rest of my committee colleagues, that this unanimous outcome would not have been possible without the high level of professional input from our clerking team, led by James Johnston, or the excellent advice provided by our adviser, Alistair Clark. The support that I received from the deputy convener, Adam Tomkins, in this process was also invaluable in achieving the outcome that we did.
We also very much welcome the spirit in which the report has been received by the cabinet secretary and recognise his willingness to consider our findings. He has already outlined some of the areas in which the Scottish Government intends to lodge amendments.
I turn, in some detail, to our key conclusions and recommendations. The committee supports the policy objective of the bill to put in place a generic framework for referendums on the basis that the bill is amended to reflect the weight of evidence that we received.
Almost all our witnesses welcomed the proposal for a generic framework as being consistent with international good practice. There are two main areas in the bill that the committee believes need to be considered again by ministers. The first of those is the powers in section 1 that enable ministers to make regulations under the affirmative statutory instrument procedure to provide for the holding of a referendum. The second is the power in section 3(7) to allow ministers to specify in subordinate legislation the wording of the question in a referendum without consulting the Electoral Commission if that wording has previously been tested.
As far as section 1 is concerned, the expert opinion that we received was somewhat critical of the extent of that power. Indeed, Dr Alan Renwick, deputy director of the constitution unit at University College London, told us that he could find
“no well-functioning parliamentary democracy that gives Ministers blanket authority to call a referendum by secondary legislation.”
Dr Renwick and a number of our other expert witnesses recommended that the power should be removed from the bill. We heard what the cabinet secretary said today in that regard.
Therefore, the committee recommended that the bill be amended so that, first,
“referendums on constitutional issues must require primary legislation”
and, secondly,
“all other referendums will ordinarily require primary legislation.”
Thirdly, the committee recommended
“that if the Cabinet Secretary wishes to identify specific criteria for other referendums which would not ordinarily require primary legislation, he should lodge the necessary amendments at Stage 2.”
The committee also explored the matter of question testing in some detail. The key consideration was whether a referendum question that had been tested by the Electoral Commission should be retested if it is proposed that it be used again in a future referendum. The cabinet secretary explained to us that, although he was in favour of question testing, he was
“not in favour of confusing people.”—[Official Report, Finance and Constitution Committee, 25 September 2019; c 11.]
I do not think that many of us are. In relation to the possibility of a second independence referendum, his view is that the question that was used in the referendum in 2014 remains “in current use”. To support that view, he cited the use of the wording in many opinion polls.
However, in the evidence that the committee received, it was mainly a different view that was taken. In particular, the committee noted the evidence from the Electoral Commission. It told us that it strongly believed that it should be asked to test a question even when that question has been asked before. In its view, that is because contexts can change. It argued that a formal testing process provides assurance to the voter about the integrity of the referendum. The committee therefore recommended that the cabinet secretary should recognise the weight of evidence in favour of the Electoral Commission testing a previously used question. We also recommended that he must come to an agreement with the Electoral Commission, based on that evidence, prior to stage 2.
The committee also examined in some detail a number of other technical aspects of the bill, including the regulation of digital campaign material, which the cabinet secretary mentioned earlier, and, in particular, the provision of imprints on such material. We recommended that the bill could be amended to tighten the requirements for providing imprints on digital material. We also recommended that ministers could provide some clarification of the intended scope of the bill in this area.
On timing issues, we agreed with our witnesses that adequate time is required in advance of polling day for two key purposes: first, to allow sufficient time for the campaign so that voters have sufficient opportunity to be properly informed about the issues; and, secondly, to allow administrators and regulators enough time to prepare for any referendum. We recommended that the bill be amended to include a minimum period of 10 weeks for the regulated referendum period.
On thresholds, we did not consider that there was sufficient evidence to support anything other than a simple majority.
The committee looked closely at section 37, which provides ministers with the power to modify the eventual act by regulations. Some of our witnesses expressed concern that the modification power is very wide. The cabinet secretary explained that the intent of the power was to provide for “dynamic legislation”—he used that term again today—
“and to ensure that electoral legislation is not static.”—[Official Report, Finance and Constitution Committee, 25 September 2019; c 7.]
The committee supports that objective, particularly given the need to respond to the increasing influence of electoral campaigning via social media. However, we also recognised the concerns of our witnesses about the width of the power. We therefore recommended that the cabinet secretary should lodge at stage 2 amendments that provide the necessary assurances that the section 37 power cannot be used for
“amending by the back door”.—[Official Report, Finance and Constitution Committee, 25 September 2019; c 6.]
It is refreshing that, during a period when our politics has become increasingly volatile, our committee system can still deliver robust, constructive and consensual scrutiny of the Executive. That is a credit to my colleagues on the committee and the wider political culture here at Holyrood. The recommendations in the committee’s stage 1 report were intentionally drafted to inform an open discussion about how the bill can be improved.
Finally, we welcome the willingness of the cabinet secretary to seriously consider our recommendations and look forward to further discussing the bill with him at stage 2. In particular, I was encouraged by his comments with regard to the question. I know that the cabinet secretary feels strongly about the issue, but I also know that he will try to find an agreement with the Electoral Commission, if at all possible.
14:45Adam Tomkins (Glasgow) (Con)
Let me open with a quote:
“We have never hidden the fact that I see this bill being used by the Parliament and the Government to create the referendum for independence”.—[Official Report, Finance and Constitution Committee, 25 September 2019; c 4.]
So said Mike Russell in evidence to this Parliament’s Finance and Constitution Committee in September. Let there be no doubt: for the Scottish National Party, this bill is not about referendums in general—it is about indyref 2. This bill was announced by the First Minister in a statement about independence, and—as we heard from the cabinet secretary earlier this afternoon—there is no issue other than independence that the SNP proposes to put to the people of Scotland in a referendum. This bill is designed with only one purpose in mind: to pave the way for an unwanted second independence referendum.
Scottish Conservative MSPs were elected to this Parliament on a manifesto commitment that was crystal clear. We will oppose the SNP’s attempts to steamroller Scotland into an unwanted second independence referendum every step of the way.
Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
Will the member take an intervention?
Adam Tomkins
I will do so in a minute.
For that reason we will oppose this unwanted referendums bill at every stage, including in the stage 1 vote this evening. We will vote against this bill. We do not support its general principles. We do not want a second independence referendum.
The question of independence was put to the people of Scotland in a referendum in 2014, which Nicola Sturgeon herself described as “once in a lifetime”. We said no and we meant it. However, even now, Nicola Sturgeon is not listening.
If the general principles of the bill are bad enough, its detail is worse.
Stewart Stevenson
Will the member take an intervention before he gets to the detail?
Adam Tomkins
Not at the moment.
Not only is the SNP trying to steamroller us into a second independence referendum; it is trying to rig that referendum by playing fast and loose with its rules. Let us start with section 1, which says:
“the Scottish Ministers may by regulations provide for a referendum to be held throughout Scotland”.
That is an astonishing provision, which the Finance and Constitution Committee unanimously recommended must be amended. There is no equivalent power in the UK’s standing legislation on referendums. No referendum can be held in the United Kingdom without the authority of an act of Parliament, which is the highest source of law that we have, and yet here, Mike Russell wants to give himself the power, by a click of his ministerial fingers, to hold a referendum by order.
Alan Renwick of the constitution unit at University College London told the committee that he knows of no well-functioning parliamentary democracy in the world that gives ministers blanket authority to call a referendum in that way. The Institute for Government agrees. It said that section 1 should be removed from the bill and that primary legislation should provide the basis for any future referendum in Scotland. That is so obviously right that it should not need saying. Referendums decide things. They are not expressions of opinion but formal devices for making decisions. Scotland decided not to become independent of the rest of the United Kingdom in 2014; and the United Kingdom decided to leave the European Union in 2016.
Michael Russell
Will the member give way?
Adam Tomkins
In a few moments.
Those are big decisions, and the process for making them deserves—indeed, demands—the fullest scrutiny. That is why passing a bill, rather than just having Mr Russell click his fingers, should be a mandatory requirement for any referendum. I will give way in one second, but I say to Mr Russell that referendums are about enhancing democracy; they are not about augmenting ministerial powers to rule by diktat. Section 1 of his bill is badly misconceived, and it should be removed.
Michael Russell
It is disappointing that the member, who is a professor of constitutional law, does not know that secondary legislation is not about clicking fingers—but we will let that pass. How does it enhance democracy to ensure that the people of Scotland are not heard when they vote not to leave the EU?
Adam Tomkins
How does it enhance democracy for this Parliament not to be allowed to debate whether there should be any future referendum? That is the question before us today.
I will move on to the role of the Electoral Commission. It has become a much-valued, widely respected and absolutely core aspect of referendums in the United Kingdom that a proposed referendum question must be tested for its intelligibility by the independent Electoral Commission. Referendum questions are proposed by ministers, tested by the Electoral Commission, and, ultimately, set by Parliament. Section 3(7)—a provision every bit as egregious as section 1—would allow Scottish ministers to bypass altogether the Electoral Commission’s role in question setting in the event that a proposed referendum question has been tested at some point in the past. I can find nobody—other than Mike Russell—who thinks that that is anything other than a terrible idea.
The Electoral Commission was robust in the evidence that it supplied to the committee. It stated:
“The Electoral Commission must be required to assess any referendum question proposed in legislation ... regardless of whether the Commission has previously published views on the question proposed.”
That is the Electoral Commission’s view and it is absolutely correct. It was supported by all the witnesses that the committee heard from, including the constitution unit, the Institute for Government and the Law Society of Scotland.
Referendums require the fullest public confidence if their results are to be respected. The Electoral Commission’s expert and independent testing of the question is key to establishing and maintaining that confidence. It should never be bypassed. Ministers have given no good reason for wanting to oust the jurisdiction of the Electoral Commission. It is nothing other than another ill-conceived power grab by a minister desperate to have indyref 2 and to ensure that his side can campaign under flags and banners for “Yes”, as Nicola Sturgeon did in George Square at the weekend and as they all did in 2014.
We need to learn from the experience of previous referendums. We know much more about referendums, referendum campaigns and the impact of referendum results than we did before the 2014 and 2016 constitutional referendums that have left such a mark on Scottish and British politics. It is vital that the Electoral Commission is not merely permitted, but is required by law, to assess all referendum questions, whether novel or recycled, in order that we learn all appropriate lessons from past experience. The Electoral Commission’s full role must be restored and the minister’s attempts to bypass it in section 3(7) must be removed from the bill.
In legislating for electoral events, whether elections or referendums, the paramount principle is surely to put the interests of voters first. The bill fails that test. The Institute for Government said:
“it is imperative that the Scottish government avoid the perception that it is seeking to avoid full scrutiny of any future referendum proposal by intention, or as a consequence of a desire to fast-track the process.”
I hope that the minister is listening and takes heed of that advice. Seeking to sideline the independent expertise of the Electoral Commission is not a good look—the minister should change course while he still can.
As it stands, the Referendums (Scotland) Bill is a bad bill. It seeks to pave the way for a second independence referendum that Scotland does not want, in clear breach of the promises to the Scottish people that Nicola Sturgeon made when campaigning in the 2014 referendum. It is also a bad bill because it purports to give to Scottish ministers powers that no Government minister should have in a well-functioning democracy—powers that no minister who respects the democratic process should want. The bill seeks not only to hold an unwanted second independence referendum but to rig the rules of that referendum. To both of those propositions, the Scottish Conservatives say, “No thanks”. For all those reasons, the Scottish Conservatives will vote against the bill at decision time tonight.
14:54Alex Rowley (Mid Scotland and Fife) (Lab)
In opening for Labour, I acknowledge the work of the Finance and Constitution Committee in holding evidence sessions and producing a report for the stage 1 debate.
The committee supported the bill’s policy objectives. If we, as a country, were to want to move to a more direct democracy in which referenda were used more and more in decision making, the objectives that the bill sets out would be sound. That is not to say that the bill as it stands is sound: the committee made a number of key recommendations on how to improve some fundamental flaws in it.
However, the first point—indeed, the main point—that I want to raise is to question whether there is a need for the bill. Are we moving in the direction of the people of Scotland being engaged in more referendums? Are the people of Scotland at this time demanding more referendums? They want Brexit to be fixed, so if a people’s vote would give us the opportunity to move forward on that, I would say yes.
However, in my experience, the people of Scotland are sick fed up of constitutional conflict. I am not sure that there is demand for a bill on referendums at this time, and certainly not until the current constitutional crisis—which was created by the Tories, and has been made even worse by the Tories—is resolved.
Patrick Harvie (Glasgow) (Green)
It is clear that Alex Rowley has concerns and disagrees with those of us who support independence on the idea of more constitutional referendums. However, did any of the witnesses who gave us expert evidence on the democratic process and on referendums, including those from the Electoral Commission, say that the principle of a framework bill for referendums is in itself a bad idea? I seem to recall that they all supported it.
Alex Rowley
I am coming to that, so I will address Mr Harvie’s point.
The SNP has, on the one hand, tried to portray the bill—just as Mr Harvie does—as simply an administrative procedure to facilitate future referendums, rather than retaining the current ad hoc approach. However, the bill is, of course, only really about one referendum. In fairness, I say that the SNP has made no secret of that—it is the SNP indyref 2 bill. As Nicola Sturgeon has made clear, the bill is being introduced to pave the way for an independence referendum in the current session of Parliament.
Labour cannot support the bill on that basis. We believe that it is not in Scotland’s interests to create, in the midst of the Tory Brexit chaos, even more uncertainty and chaos. Indeed, I suggest that it would, during this chaos, be impossible to put a clear proposition to the Scottish people. Would we be in or out of Europe? Mr Russell suggests that he has had a nod and a wink from some people in Europe that we would be welcomed with open arms. I am not sure who nodded—
Michael Russell
To be entirely fair, I draw Alex Rowley’s attention to the reported remarks—not nods and winks—of Herman Van Rompuy, the former President of the European Commission. He made it clear that although he does not describe himself as a separatist—as he put it—there is a path open, if Scotland were to take it in the usual conventional and constitutional way. That is not nods and winks; that is an open path.
Alex Rowley
If we have learned anything from the failed attempts by the Tories over three years, it is that it would not be as simple and straightforward as that. Mr Russell needs to acknowledge that. He was quoted as saying that the relationship with the rest of the UK and the border between Scotland and England will be governed by the European Union in the event of Scotland becoming independent.
Nicola Sturgeon has rightly expressed concern about our £14 billion trade with the European Union being put at risk by a failed Tory Brexit. However, what about the £50 billion trade that we have with the rest of the United Kingdom? That is the inherent contradiction in the SNP ideology. How is it possible that it would be a disaster for Scotland to leave the single market of the European Union but somehow a triumph to leave the larger single market of the United Kingdom? The majority of our trade takes place in the UK.
Michael Russell
I do not know anybody who has suggested leaving the single market of the United Kingdom. Alex Rowley referred to Nicola Sturgeon’s remarks. They were about making sure that such provision is part of the arrangement between the EU and the rest of the UK. The rest of the UK has indicated that it wishes for a seamless trading relationship. Therefore, there is no problem.
Alex Rowley
Trade with the rest of the United Kingdom is worth £50 billion.
This morning, I read an article in The Scotsman, in which Michael Russell said that it would be down to the governance of the European Union as to how that border, or hard border, would work. How can we in this Parliament argue that a hard border in Ireland is a bad thing, but a hard border between Scotland and England is a price worth paying? The answer is that we cannot.
Most people do not want never-ending constitutional division and chaos. The bill is not required at this time, when we have gone through years of failed Tory austerity, when our public services are buckling under the failures of the Westminster and Edinburgh Governments, and when people are struggling daily to get by.
People are crying out for change. That change will not be delivered by putting up a border and changing a flag. The SNP’s growth commission demonstrates that independence cannot deliver the fundamental change that Scotland needs in our economy and in our society. There is no indication that an SNP-led independent Scotland would avoid the damage that is inflicted by neoliberal economic policies. The SNP growth commission also acknowledges that an independent Scotland would be shaped by foreign direct investment, low taxation and prolonged and intensified austerity—austerity on stilts.
Neither the status quo nor the nationalists’ proposals can provide what Scotland needs. Labour’s alternative for the future of our country is one in which our economy and our society are transformed for the better and for the many. It is a future in which real change has a real impact in order to make people’s lives better. We will invest on a scale that has never been seen before and we will deliver the necessary shift in the balance of power and wealth that we need to make our country fairer.
That will mean £250 billion of investment across the whole UK over the next 10 years, as part of our green transformation fund. It will mean £150 billion over the first five years of a Labour Government, as part of our social transformation fund—
The Presiding Officer
Mr Rowley, I will stop you there. You have moved from the Referendums (Scotland) Bill into election campaigning. It sounds like you are reading out the Labour Party election manifesto. Please get back to the Referendums (Scotland) Bill.
Alex Rowley
Time and again, the First Minister and cabinet secretary have said that the bill will pave the way for independence for Scotland. I am trying to contrast what they propose for Scotland with what the Labour Party proposes for Scotland. We propose a transformational change in the way that our economy and society work, through the types of investment that I am setting out.
The Cabinet Secretary for Finance, Economy and Fair Work is sitting having a wee chuckle to himself, but the growth commission, which Derek Mackay sat on, has made it clear that we would have decades more of austerity as a result of the independence referendum bill that is in front of us.
Rather than try to rig a referendum, the Government here in Edinburgh should bring the bill to a halt, and instead free up time to allow Parliament to focus on the kind of transformation that our country needs. The bill is flawed: members should vote it down.
15:05Patrick Harvie (Glasgow) (Green)
Although it is always great fun to debate borders, flags or the growth commission, I have come here to debate a framework bill on referendums, because I value the work that my colleagues and I on the Finance and Constitution Committee have done in taking evidence on the bill.
The evidence on the basic principle that there should be framework legislation for referendums is pretty clear. I cannot remember hearing a substantial case against it in any of the evidence that we received. However, as the cabinet secretary has acknowledged, the bill will clearly require changes. For example, I have struggled to understand the case whereby a question can be so urgent that primary legislation cannot be used and secondary legislation should be used, while that same question can be so unimportant that scrutiny can be dispensed with. I am not saying “never” to the idea of using secondary legislation in that way, but the Scottish Government needs to be far clearer about the principles and in what circumstances it thinks that that would be justified.
On question testing, a case can be made for a shelf life, but it is not an overwhelming case. I struggle to see why, if there is time to conduct question testing in preparation for a referendum, it should be dispensed with.
We must acknowledge the importance and legitimacy of having an independent body that can advise on democratic processes. Either we trust the Electoral Commission to be that body or we do not. A case might be made for Scotland creating a new independent body to take on those functions. In that context, I am unclear why only political parties that have at least two members of Parliament at Westminster should be able to nominate commissioners to the Electoral Commission. I have no idea why, for example, a Democratic Unionist Party commissioner should have any say in issues reflecting Scottish democracy.
However, there is no case for saying that we will use the Electoral Commission as an independent body but only if we think that it will make decisions that we agree with. The context here is clearly indyref 2 and the fear that some people would seek to muddy the waters by reframing that debate, when it comes, using terms that have never been used in relation to independence but which are solely defined around Brexit.
People have mischievously suggested reframing that debate around “leave” and “remain”. However, Vote Leave and Leave.EU are established and distinct political brands that come preloaded with their political values. Both organisations are permanently associated with their track record of anti-European attitudes, hostility to immigration and serious breaches of electoral law. Although in this chamber we are not allowed to accuse anyone of lying, both those organisations have made countless statements that strain my ability to describe them otherwise.
On the other hand, “remain” is also strongly associated with EU membership, freedom of movement and the single market—positions with which not all supporters of independence agree.
The purpose of the Electoral Commission’s testing is therefore to develop clear advice on intelligibility. It seems to me to be overwhelmingly clear that any proposal to reframe a question on independence around “leave” and “remain” would be rejected by any fair assessment.
Neil Findlay
Mr Harvie rightly lays into the mistruths that have been expressed by the leave campaign, but I have to ask him to reflect on some of the utter rubbish that was in the white paper that was presented for the independence campaign. Will he reflect on that as well?
Patrick Harvie
I have reflected on many occasions on why I did not support the SNP’s white paper. On another occasion we will debate that in detail.
I urge the Scottish Government to have confidence in the Electoral Commission’s process for question testing. If the cabinet secretary does not have confidence in it, the Government should propose an alternative. I am glad that, from the Scottish Government’s point of view, the door does not appear to be closed on testing, so we need to hear more on that before stage 2.
There are many other issues that I wanted to touch on in the brief time available to me: the lessons that we need to learn from 2014, 2016 and more; the issues around political interference and dark money; and political education, which needs to be so much stronger. The Scottish Parliament now has responsibility for our democratic processes, and the integrity of our democracy is clearly under threat. We need to make sure that we are passing legislation that is up to addressing and minimising that threat.
In particular, two issues stemming from the Representation of the People Act 1983 need to be addressed. Digital campaigning is now a core part of the electoral process. The 1983 act is clear on publications: criminal offences arise when publications do not include required information. That is so that people know the source of what they are looking at. That does not apply just to candidates or parties; it applies to everyone. Publishing online, including via social media, is not just like chatter around the water cooler; rather, it is a core campaign tool, and it deserves the same level of regulation.
The Finance and Constitution Committee did not recommend that either the Electoral Commission or a new body should rule on the question of providing objective information, but misleading information is far more powerful in this digital age, when rumours or deliberate misrepresentation can go viral and can become unchallengeable very quickly.
As regards the aspect of the 1983 legislation that proposed criminal offences for misrepresenting the character of an election candidate, we need to find a way to translate that principle into a relationship with referendums, so that the requirements for honesty—not just from campaign bodies, politicians and activists, but from everybody—are applied in the same way in relation to referendums as we expect and hope them to be applied in relation to elections.
15:12Mike Rumbles (North East Scotland) (LD)
The Referendums (Scotland) Bill is a bill that the people of Scotland do not want. It is a fact, however, that the two nationalist parties in the Parliament have the votes to push this fraud of a bill through at decision time.
The Scottish Government has wasted a huge amount of time and resources in bringing this 163-page bill forward. Of course, it is the Scottish Government’s right to waste taxpayers’ money on the bill if it wishes to, but it will face electoral consequences for doing so. It will face those consequences sooner rather than later, because everyone knows that the First Minister has framed indyref 2 as her number 1 priority now. The Cabinet Secretary for Government Business and Constitutional Relations made it obvious in his opening speech and when taking interventions—I thank him again for taking my intervention—that the Government does not have any examples at all to which the bill is relevant, other than indyref 2. That gives the game away, for a start.
Exactly what happened to the First Minister’s declaration that education was the Government’s number 1 priority?
Stewart Stevenson
Will the member take an intervention?
Mike Rumbles
No.
Nicola Sturgeon asked us to judge her Government on its performance on education. Is it any wonder that the First Minister now wants to focus on indyref 2, rather than the state of Scottish education?
The First Minister has made it clear that, before the end of the year, she will ask whoever is Prime Minister to authorise another divisive referendum in order to break up our country—just five years after the UK and Scottish Governments said in the Edinburgh agreement that they would honour the result of the 2014 referendum. Of course, I do not expect the two nationalist parties in the Parliament ever to give up on their nationalist aims to break up Britain, but I did expect that the Scottish Government’s commitment to uphold the 2014 result would last, to quote the First Minister at the time, a certain Alex Salmond—remember him?—for “a generation”.
At least our current First Minister is clear. She wishes to tear up the Edinburgh agreement and focus everything on her ambition to break up Britain, and the Referendums (Scotland) Bill is the first step along the legislative route to doing that. She was warned about the implications by the head of the civil service in Scotland—we have The Herald to thank for publicising that. Not only did the permanent secretary say that there would be “wider implications” for the Government’s business, but the First Minister was also told that constitutional change would mean the “deprioritisation of activity”—in other words, it would have direct implications for getting on with the day job of running Scotland properly.
The Scottish Government has seen fit to ignore—
Graham Simpson (Central Scotland) (Con) rose—
Mike Rumbles
I will give way to Graham Simpson if his intervention is brief.
Graham Simpson
It is on that point. [Interruption.]
The Deputy Presiding Officer (Christine Grahame)
I think that Mr Simpson would like to say something, although members are cheering him on.
Graham Simpson
I am often cheered on by the cabinet secretary.
Does Mr Rumbles agree that ramming the bill through by the end of this year—which is what the Government wants to do—would not make for good legislation?
Mike Rumbles
I quite agree. The bill is an example of bad legislation, and ramming it through regardless is an example of what the Parliament was designed not to do.
As I was saying, the Scottish Government ignored the permanent secretary’s advice.
Michael Russell
Will the member give way?
Mike Rumbles
Will the cabinet secretary give me a minute to make some progress? I will give way to him in a moment.
I have to thank the First Minister for being so unusually clear about what she wants to do. If they examine the detail of the bill, the people of Scotland can also be in no doubt that the SNP Administration will use any device to maximise its support by any means, fair or foul. I refer to section 3(7), which clearly states that the Electoral Commission need not bother to examine the veracity of the proposed referendum question if it has previously done so. The message from the Scottish Government is clear: “We don’t want the Electoral Commission to interfere with our question—it gives us a fine advantage as it is, thank you very much.” I remind members that I said “by any means, fair or foul”.
On that note, I give way to the cabinet secretary.
Michael Russell
As Mr Rumbles will be aware, I made an opening speech—in which he intervened—in which I made it clear that I have proposals for that area and that I accept the committee’s recommendations, for which I had thought that I would be commended.
I add that I am very surprised that the convener of the Delegated Powers and Law Reform Committee should use the word “ramming” when the bill is following the normal procedure for bills in the Parliament, which he knows well. That is highly surprising.
Mike Rumbles
I noticed that the cabinet secretary said that he would come to an agreement with the Electoral Commission—not that the commission is right. It is a measure of the Scottish Government’s integrity that it should even try to get away with that.
I would much rather have been in the chamber today to respond to a debate about the Scottish Government’s domestic agenda, which is about dealing with the devolved issues for which it actually has responsibility. The constitution of our country is the responsibility of our other Parliament, at Westminster. Our Parliament at Holyrood is responsible for important issues that affect Scottish people’s lives. The Scottish Government has told us that it has neither the time nor the resources to work on the promised crofting bill that was dumped so unceremoniously. What has delayed the agriculture bill? Why do we not have a bill to ensure that mental health issues will be treated as well as physical ones? Why do we not have a bill to end homelessness? Where is the good food nation bill? I could list so many more areas that should be addressed but on which the Scottish Government has delayed or dropped bills while it proceeds with this fraud of a bill. It has done so because it values the Referendums (Scotland) Bill and indyref 2 above everything else.
Liberal Democrats do not want the chaos of breaking up Britain to be added to the chaos of Brexit that we already face. We do not support the bill and will vote against it at decision time.
The Deputy Presiding Officer
We move to the open debate. Speeches should be of six minutes or so.
15:18Angela Constance (Almond Valley) (SNP)
When the Finance and Constitution Committee was in the process of finalising its stage 1 report, I was representing the Parliament at the Council of Europe’s Congress of Local and Regional Authorities. Nonetheless, I have no hesitation in associating myself with the report because—as is usual under the stewardship of Bruce Crawford—the committee has pursued the art of the possible and of achieving consensus wherever possible. It is a pity that some contributors to the debate—especially those who are members of the committee—have not taken on board Mr Russell’s opening remarks or his significant concessions.
The committee convener outlined that the recommendations in the stage 1 report were drafted with the intention of informing further discussion and debate on how we get the very best referendums legislation. I believe that the committee’s report can help us to learn from the best of the 2004 referendum experience, but also from the worst of the 2016 experience and its unfolding consequences.
I have never hidden that I have believed in independence since I was eight—I have waved a few flags in my time, and I have campaigned and marched for independence since I was 18, at a time when it was far from fashionable.
In 2016, I was elected on a manifesto commitment that said:
“We believe that the Scottish Parliament should have the right to hold another referendum if there is ... a significant and material change in the circumstances that prevailed in 2014, such as Scotland being taken out of the EU against our will.”
I want our journey towards independence to be built on the highest of international standards, so we cannot pick and choose when we apply that gold standard. Therefore, I want any referendum on Scotland’s constitutional future to be built on primary legislation, because fundamentally I want this Parliament to decide and every member of it to have the opportunity to choose to vote for or against.
I have never expected or demanded either citizen or politician to abandon their own deeply help convictions and conscience. We can seek only to persuade, and we can never do that by closing down debate or scrutiny.
Ultimately, it should be this Parliament that decides whether there is a referendum, the details of the legislation and what powers to confer—or not—on ministers. For the record, I support amending the bill so that it includes a minimum campaign period. Such a measure is based on good democratic practice, and I welcome the cabinet secretary’s commitment to it.
The issues of the referendum question and testing were robustly explored by the committee. I am somewhat surprised that there seems to be some concern about conspiracy, given that there are different views on the issue across the wider yes movement. My own view is that it is entirely logical and legitimate to say that the 2014 question has already been tested by the Electoral Commission and that it remains current because it has been asked 200 times since 2014. Also, there is nothing to prevent the Electoral Commission from publishing and sharing its views in the future.
Nonetheless, I accept that it is prudent and mature of the committee to ask both the cabinet secretary and the Electoral Commission, in the first instance, to go away, find some space, look at the evidence together and see whether they can come to an agreed way forward to bring back to members prior to stage 2. I can support that approach, despite my own grumbles about some aspects of the Electoral Commission’s structure as a UK-wide body. I will not repeat Patrick Harvie’s comments—I raised those issues at committee.
Although the cabinet secretary is characteristically up front about his own thinking and instincts, in his remarks today and at committee, he has consistently indicated that he remains open to on-going discussion. I was tempted to say that he is being uncharacteristically flexible, but that would be unfair, as very few people will have observed the inflexibility of Westminster in recent times without seeing the self-destruction of the UK Government’s approach and seeking to avoid it.
The UK Government has failed to generate consent and trust among remainers, and it has even lost the support of some of its own. If Brexit has taught us anything, surely it is what not to do if we want to persuade and lead. We have to reach out, and we have to reach out to those of a different opinion.
Although we live in uncertain times, I believe that history will show that ignoring the highest remain-voting part of the UK will lead to the demise of the UK. I suspect that I am not alone in that thinking, and it may be the reason why the UK Government is running scared of a section 30 order—
The Deputy Presiding Officer
I was just thinking that you were making an excellent speech, as you were actually speaking to the bill at stage 1, but you are just beginning to drift into electioneering. You are just easing yourself into it; nevertheless, that is what you are doing, so stop.
Angela Constance
I will take your advice, Presiding Officer, and stop. However, I end by saying that, whatever views about Scotland’s constitutional future people may hold, the bill could help us to build a future and build a consensus.
The Deputy Presiding Officer
I remind members that we are discussing stage 1 of a very technical bill, and it would be useful if they would, in the main, speak to the bill.
15:25Alexander Burnett (Aberdeenshire West) (Con)
I thank the committee clerks for their considerable efforts in producing the report. I also thank those who gave evidence on the bill, both written and in person. As ever, their time and effort are much appreciated.
Like most committee members during multiple evidence sessions, I focused on a particular theme. My area of focus was the role of the Electoral Commission and the testing of any referendum question, and it came as little surprise that there was unanimous agreement among those who gave evidence. I hope that the cabinet secretary has taken that on board and ensures that the bill that he is seeking to take forward meets the level of credibility to which I hope he aspires.
The fact that ministers will be able to set referendum timing and questions in secondary legislation is cause for concern. That is not a party-political point, but a democratic one. Would the cabinet secretary be happy when the shoe is on the other foot and such important details are at the discretion of a Scottish Conservative minister?
The truth is that the whole bill is a political point, from the speed at which it is being rushed through Parliament at the expense of existing responsibilities, to the pretence that it is not a foundation stone for a second independence referendum. That hypocrisy can even be seen in the bill, otherwise why would a bill that will cover only devolved issues include a specific provision to approve a previously asked question when that question is a reserved issue? The only question that has been asked before is the one on independence, and it is the only one in relation to which the SNP seeks to legislate against scrutiny.
The scrutiny that is required is very clear. That has been set out by the Electoral Commission and it covers requirements for clear timescales, focus groups, interviews, geographical testing, accessibility and more.
I asked Dame Sue Bruce, the Electoral Commission’s commissioner with responsibility for Scotland, what her position is on the fact that panels from whom we had taken evidence had been very clear about not only the need to test the referendum question but the Electoral Commission’s role in that, including when the question has been asked before. Her response could not have been more clear. She said that she strongly believes
“that the Electoral Commission should be asked to test the question. I refer again to putting the voter at the centre of the process. We think that formal testing of the question helps to provide confidence and assurance to the voter and to the Parliament that is posing the question and, with regard to the integrity of the process, to establish that the question is clear, transparent and neutral in its setting.”—[Official Report, Finance and Constitution Committee, 18 September 2019; c 37.]
Based on the evidence, it was not surprising that the committee recommended in its stage 1 report
“that the Cabinet Secretary recognises the weight of evidence ... in favour of the Electoral Commission testing a previously used referendum question and must come to an agreement, based on this evidence, with the Electoral Commission, prior to Stage 2.”
However, we must wait to see whether that will happen.
In committee, when I asked the cabinet secretary repeatedly about his view of testing a referendum question, his response—despite the evidence that we had heard—was that the question had already been tested. When probed on why the matter was beyond question, he said,
“I am not in favour of confusing people. If a question has been used again and again and it continues to be in use, it would be a serious step to try to throw it out.”—[Official Report, Finance and Constitution Committee, 25 September 2019; c 11.]
As an aside, I do not think that the cabinet secretary has much regard for the intelligence of the electorate if he thinks that they would be confused.
I believe that it is a grave mistake to simply accept a question because it has been used previously. There is an unfortunate arrogance in the cabinet secretary’s position. What he is really saying is that he knows best and that he is afraid to seek and trust the Electoral Commission’s endorsement. Arrogance and fear—that is no way to legislate.
The cabinet secretary’s rejection of the Electoral Commission’s wish to be involved demonstrates scant support for the protectors of our democracy. We need to ensure that the question is as fair to the electorate as possible. As ever, the Scottish Conservatives think that it is important that every question is tested and created using an evidence-based approach.
All of us—the Electoral Commission, MSPs and the electorate—are learning on a daily basis. The only person who appears to have given up on learning—possibly in line with his party’s education record—is the cabinet secretary. Many lessons need to be reflected in the bill, not least the fact that Scotland wants to move on from repeating referenda. The Scottish people rejected separation in 2014 and see this constant constitutional posturing as nothing more than disrespect for their vote. I say to the cabinet secretary that it is never too late to start learning.
15:31Tom Arthur (Renfrewshire South) (SNP)
I am grateful for the opportunity to speak in the debate. I thank the clerks and my colleagues on the Delegated Powers and Law Reform Committee and the Finance and Constitution Committee. I associate myself with the remarks of Bruce Crawford, who spoke in his capacity as convener of the Finance and Constitution Committee. The work that both committees undertook was serious and rigorous. All committee members played an important part, and the bill will be strengthened as a consequence.
I encourage anyone who reads the Official Report of today’s proceedings or who watches the debate at home or in the public gallery to look at the Finance and Constitution Committee’s report and at the work of committees. Although a rather partisan and political debate is taking place in the chamber in the shadow of a general election campaign, the work that the committees undertook was serious and considered, and it reflects the best of the Parliament. I hope that, as the debate progresses, more of that ethos and spirit will come into members’ contributions.
I welcome the bill and the cabinet secretary’s response, which takes cognisance of the recommendations of the DPLR Committee and the Finance and Constitution Committee. The proposal to increase the minimum fine from £10,000 to £500,000 is welcome and will, I believe, command support across the committee. The principle for a default 10-week regulated period is to be welcomed, too. I also welcome the cabinet secretary’s willingness to consider the use of regulation-making powers, as provided for in section 1, and how they can be more clearly defined. I welcome the fact that matters such as a future independence referendum would be dealt with through primary legislation. That is a sensible way to approach any future referendum.
The bill and our deliberations on it offer us the opportunity to consider the operational matters and the mechanics of any future referendum in as close to a sterile political environment as possible, meaning that any future bill that paves the way for a referendum on Scottish independence can focus primarily on the merits of whether that question should be asked, on which we all have strong views.
I have a degree of sympathy for all positions that have been expressed on question testing. As the committee’s report makes clear, the committee was unanimous in recognising the weight of evidence that was submitted.
I note that, to my knowledge, there have been six national referendums in Scotland. Three have been specific to Scotland and three have been UK-wide referendums. The first three referendums took place in 1975, 1979 and 1997—three referendums over 22 years—with two being on devolution and one concerning membership of the European Union. However, in the space of five years, we have had three more referendums.
There is a trend for more and increasingly frequent referendums. They are a useful tool for taking decisions that perhaps go beyond those that it would normally be considered appropriate for MSPs to take. In the committee, certain examples were highlighted. The idea that questions might be referred from a citizens assembly requires further investigation. In the scenario that a question was referred from a citizens assembly, after considerable deliberation and much public discussion, the vehicle of a statutory instrument might be a more appropriate means of initiating a referendum.
I note from the Finance and Constitution Committee’s report that reference was made by the DPLR Committee to using a super-affirmative procedure. That would give the opportunity for any aspects of a referendum question that was proposed in such a scenario to be amended and discussed in some detail. Although it should be the norm for referendum questions to be considered via primary legislation, there is a case for retaining the power to create referendums through secondary legislation. That should be considered at stage 2 and I look forward to having discussions with colleagues on the Finance and Constitution Committee and, potentially, the Delegated Powers and Law Reform Committee.
I note that the Finance and Constitution Committee was unanimous in supporting the policy objectives of the bill. I appreciate that today’s vote is on the bill’s general principles and that some Opposition members will feel that they are unable to vote for them but, given the unanimity of support for the policy objectives, I urge Opposition members to abstain and allow the bill to progress to stage 2 so that it can be amended and their concerns can be addressed. The cabinet secretary has recognised those concerns and shown a willingness to engage constructively with all members and committees in taking the bill forward.
15:36Neil Findlay (Lothian) (Lab)
There are days when this Parliament inspires and motivates me and delivers for our people, and there are days when it depresses me—when it navel gazes and its focus is on issues that command the energy and attention of the political class or it is used for narrow party advantage that completely ignores the plight of the people we are sent here to represent. I am afraid that this is one of those latter occasions.
In 16 years of elected politics, I have not had a single person come to me and demand that we put through a framework bill on how we conduct referendums. Let me set out clearly what people come to me about and let me tell members what issues are affecting my community. I would bet my last penny that those are the issues filling the mailbox of almost every other member of the Parliament and taking up their time at constituency surgeries.
My constituents in Stoneyburn want to know why they no longer have a general practice in their village for the first time since the formation of the national health service.
The Deputy Presiding Officer
I am sorry, Mr Findlay; please sit down. I know that this is difficult for everybody. This debate is on stage 1 of a bill on technical issues. Yes, speak against the bill—absolutely—but I do not want to hear detailed political points being made instead of discussion of the bill. You have made your general point that you think that there are more important issues. That is your position, but let us discuss the bill. That is what the debate is about.
Neil Findlay
Presiding Officer, I am going to expand on the argument that I am putting across. I need to exemplify the points that I am making, and that is what I am attempting to do. You will see where my argument goes if you allow me to make those points.
The Deputy Presiding Officer
I will give you a bit of leeway, but do not stretch it too far.
Neil Findlay
My point is this: why are my constituents not seeing Parliament address that issue? Why are my constituents across the Lothians who are trying to find somewhere to live and who cannot access a council house and cannot afford rising rents not afforded a citizens initiative or a referendum on a proposal to address homelessness in this city? I will bet that they would want one.
Tom Arthur
Would Neil Findlay like those issues to be discussed in a future citizens assembly? If significant and radical proposals came forward, would he like them to be put to the people in a referendum?
Neil Findlay
We are starting to move into a whole different set-up. That would need wide discussion.
There are other issues. For example, constituents of mine from East Calder are waiting 54 weeks for orthopaedic operations. They are supposed to have a legal—
The Deputy Presiding Officer
I am sorry, Mr Findlay, but I have warned you already. You are now going into constituency details. Please sit down. I understand your position, but do not abuse it. You do not agree with the bill—that is fine—and you think that there are better things to deal with. You have said that. Now please tackle the report. Attack that. I am not going to listen to constituency details. I will ask you to stop and sit down otherwise.
Neil Findlay
You can do that, but my constituents want to know where the initiative in the Parliament is when ministers in the Parliament break the law more than 100,000 times. We are seeing a new referendum initiative. Where is the new initiative to hold to account ministers who break the law? Where are initiatives coming forward in the Parliament to address drug deaths? We have not even had a debate about drug deaths, never mind a referendum or a citizens assembly—we have had none of that. There are no new initiatives coming forward to address one of the biggest crises that we have, but we want to create new legislation on referendums for something that might never happen. We know that the only thing that the SNP wants to happen is Mr Russell to have his day taking through a bill that paves the way for an independence referendum.
Where is the opportunity for a citizens initiative or a referendum on the Government’s failing education policy? That is supposed to be the Government’s top priority. There is no opportunity for us to hold the Government to account via a referendum or a citizens initiative. As we have already heard today, the Government has not had an education debate for two years. Where is our ability to hold the Government to account?
If the bill proceeds, I will look to lodge amendments on having a third option or additional options on ballot papers for any future referendum and on different citizens initiatives that will hold the Government to account when it breaks the law 100,000 times. If all that we have is more binary referendum choices, we will create more divided and more depressing politics.
I adopt the default principle that powers should be devolved to the lowest level unless there is an overwhelming or rational reason not to do so. I believe that that is a sound principle and that we can debate each topic that comes forward and deliver power to the most appropriate level. That is what I believe in, but that debate is for another time.
The bill should not deflect us from dealing with the immediate issues that our people face. People are out there lying in doorways and shivering on the street. I think that, today, people will rightly look at this place and wonder what relevance it has to their lives.
15:43Jenny Gilruth (Mid Fife and Glenrothes) (SNP)
Talk about depressing politics.
I am grateful for the opportunity to contribute to this debate on the Referendums (Scotland) Bill, which, as it says, is for
“An Act of the Scottish Parliament to make provision for the holding of referendums throughout Scotland; to make provision about such referendums and other referendums held under Acts of the Scottish Parliament.”
It is undeniable that the tectonic plates of Scottish politics have shifted somewhat cataclysmically since 2014. Therefore, the importance of getting the legislation right cannot be overestimated.
The two key issues in the Finance and Constitution Committee’s stage 1 report that I would like to focus on are electoral registration and political literacy, with particular reference to sections 4 and 28 of the bill. I declare an interest as a former modern studies teacher and development officer for the national qualifications at Education Scotland, where I contributed to the curriculum for excellence briefing paper on political literacy that was published in August 2013.
The UK-wide introduction of individual electoral registration, or IER, did not happen until after the 2014 referendum. The committee was told that
“It is widely thought that one of the effects of individual electoral registration has been a reduction in the completeness of the electoral register”
and that
“research shows that young people and students in particular were negatively affected.”—[Official Report, Finance and Constitution Committee, 11 September 2019; c 35.]
According to the Electoral Reform Society, 9.4 million people in the UK are missing from the electoral roll, which is nearly 14 per cent of the population. Although the process of individual electoral registration currently remains a reserved matter, that should not deter discussions on how to improve voter registration in the interests of democracy.
In the run-up to the 2014 referendum, I recall attending a meeting in the City of Edinburgh Council chambers with Mary Pitcaithly, who was the chief counting officer for the Scottish independence referendum. I was there as an employee of Education Scotland. I am sure that I am not breaking any confidences when I say that it became clear that there were varying approaches around the country to section 26 of the Scottish Independence Referendum Act 2013, which focused on encouraging participation. Adam Tomkins is absolutely right when he says that we need to learn lessons from referendums. Perhaps the Government can reflect on that and strengthen the provisions in section 28 of the bill, which focuses on participation.
The Electoral Management Board for Scotland advised the committee:
“Rationalising existing laws to create a single, consistent framework governing referendums offers many benefits to the voter, to campaigners, the regulator and electoral administrators and to the extent that the draft Referendums (Scotland) Bill contributes to this objective, the EMB see this as a wholly positive policy direction.”
In the interests of democracy, I hope that members agree with that. It is particularly important that young people are encouraged to register, as we know that individual registration has impacted negatively on that cohort.
I take issue with some of the evidence that the committee received from the Stevenson trust for citizenship. It noted
“gaps in the availability of Modern Studies programmes across Scotland, lack of clarity about the aims and acceptable approaches in dealing with political questions and political literacy in the classroom”.
However, modern studies is not a programme. It is a core part of the social studies curriculum area, which every pupil in Scotland should have experience of until the end of their broad general education. They may then choose to study it in more detail at the level of national 4 or 5, higher or advanced higher.
The trust went on to reference its own research, which polled just 21 schools—that is not even 6 per cent of Scotland’s secondary schools.
Neil Findlay
Like Jenny Gilruth, I was a modern studies teacher. Does she recognise that many schools do not teach modern studies at that level?
Jenny Gilruth
I am not sure what Neil Findlay is referring to when he says “that level”. Do you mean higher than—
The Deputy Presiding Officer
You cannot just have a wee conversation across the chamber. Mr Findlay might wish to intervene again. I do like to earn my keep. Mr Findlay, do you wish to clarify your intervention?
Neil Findlay
The point that I was making was that not all schools teach modern studies at senior level.
Jenny Gilruth
I am coming on to address that point.
There is some evidence to substantiate that point. The 2012 social studies curriculum impact report identified that 20 per cent of Scottish secondary schools did not deliver modern studies via a subject specialist. That means that, up to a certain level, they might deliver it via a history or geography teacher.
Mr Findlay is correct. The teaching of modern studies will be important if we have another referendum, because the proposed franchise will be based on the one that is used for local government and Scottish Parliament elections, which includes EU citizens and 16 and 17-year-olds. I hope that the Education and Skills Committee picks up the issue as the bill progresses. We need to ensure that the next generation gets the knowledge, understanding and skills that modern studies develops, which will allow young people to identify bias and exaggeration, for example, and make an informed choice when they vote. In the era of fake news, the pivotal role of modern studies in doing that has become even more apparent.
The policy objective of the bill is to
“ensure that future referendums on matters that are within the competence of the Scottish Parliament maintain the high standards achieved by the referendum on Scottish independence in 2014.”
The 2014 referendum is often lauded as the gold standard of referenda. There was, for the most part, consensual debate, discussion and a white paper—like it or not. Up and down the country, whether people were yes or no, they became engaged in the political process in their droves. We secured the highest ever voting turn-out in the British isles, with 84.5 per cent of those who were registered to vote doing so.
We need only consider the situation in Catalonia to reflect on why the bill is so vital. Whether you were yes or no in 2014, no honest democrat accepts the political persecution of those who support Catalonian independence as just. The former vice-president of Catalonia was sentenced to 13 years in prison, the former speaker of the Catalan Parliament was sentenced—
The Deputy Presiding Officer
I am getting an uneasy feeling—you know what I mean. Please go back to the bill. I am trying to be subtle.
Jenny Gilruth
With due respect, Presiding Officer, what I am saying links to why the question and the debate are so important. In Catalonia, there were obviously a number of issues that did not allow the democratic process to prevail in the way it should. Should I move away from that point, Presiding Officer?
The Deputy Presiding Officer
No, I am just wary—please continue.
Jenny Gilruth
As we watch on at the horrific actions of the Spanish Government, we must make doubly sure to tread a path of civility in our use of language and in our actions in this Parliament in the face of the next Scottish independence referendum.
I spent my entire career in education trying to get young people interested in politics. They enjoyed watching Annabel Goldie dangle from an abseil in 2007; they were mildly amused by the Tories “Brown bottles it” stunt. However, it was 2014 that engaged a generation of voters for the very first time. Let us make sure that we get it right for the next generation; let us make sure that they are the next part of Scotland’s story.
15:50Graham Simpson (Central Scotland) (Con)
It is good to be able to speak in this debate on the Referendums (Scotland) Bill—and I will speak about the bill, Presiding Officer.
On the face of it, the bill looks perfectly innocent. It states that it is:
“An Act of the Scottish Parliament to make provision for the holding of referendums throughout Scotland; to make provision about such referendums and other referendums held under Acts of the Scottish Parliament”,
and it comes complete with sections on the franchise, conduct, campaign rules, agents, registration and so on. That does not ring any alarm bells. However, there are all kinds of bear traps lurking in there for the unwary, and some sharp-eyed souls out there spotted them immediately. For accuracy purposes, this bill should be renamed the independence referendum (preparedness for) (cranking up grievance) (Scotland) bill, because that is what it is.
Two committees of this Parliament have raised serious concerns on the back of the evidence that has been received. The DPLR Committee, which I convene, and the lead committee, the Finance and Constitution Committee, have both done an admirable job of scrutiny. They listened to the evidence on the preposterous idea that any future referendum on any subject would be set up using subordinate legislation.
The Law Society of Scotland said:
“We have reservations about the use of subordinate legislation for the most important questions relating to the Constitution.”
What could it mean? It added:
“Such issues require full and proper scrutiny which subordinate legislation does not provide.”
The Faculty of Advocates said:
“Disregarding the issues about legislative competence, it is difficult to envisage circumstances in which the holding of such a referendum and the framing of the question to be put would be more appropriately initiated under secondary legislation than by the Scottish Parliament considering and debating a Bill.”
Dr Alan Renwick of University College London, who has already been quoted, said:
“A power to call a referendum on any subject by regulations would be highly unusual. In fact, I have found no well-functioning parliamentary democracy that gives Ministers blanket authority to call a referendum by secondary legislation.”
I did some research on that and I can find no examples anywhere—not just in well-functioning parliamentary democracies. It would be a world first, and not one to be proud of.
Stewart Stevenson
Will the member give way?
Graham Simpson
No.
I do not speak for the DPLR Committee in this debate, but when we had Mr Russell before the committee, I opened the questioning. He and I danced around the subject of what a referendum might be used for. I suggested, perhaps rather cheekily, that there might be a vote on bin collections—which is not such a bad idea, given the state of the service in some parts of the country. The cabinet secretary was, to be fair, less combative than usual, and when we discussed where primary legislation might be appropriate, he proffered moral issues such as end-of-life questions.
However, we all know that this bill is not about bin collections or moral questions. It is about one thing and one thing only: independence. To suggest that the details of another vote on Scotland’s constitutional future, which we decided on in 2014, should be rammed through Parliament by subordinate legislation is an outrage.
The stage 1 report notes that the DPLR Committee said that
“there may be times where using delegated powers is appropriate but that different referendums may require a different level of parliamentary scrutiny—either primary or secondary legislation.”
The committee concluded that a question that is put in a referendum that requires an order to be made under the delegated power in section 30 of the Scotland Act 1998, as well as questions about significant moral issues, should require primary legislation, and the Finance and Constitution Committee agreed with that.
We now come to the issue of who sets a question. Again, let us be honest: this is about independence. Section 3(7) excludes consideration of a question by the Electoral Commission when it has previously published a report on that question or has previously recommended the wording of the question.
The cabinet secretary was rather bullish—to put it politely—about that in committee. Somewhat bizarrely, he claimed that because we had asked one question in 2014, the same question should be set in stone, because, he said,
“it is a current question”.
He went on to say:
“I cannot see why we would suddenly decide, ‘We’d better brush this one down and have it tested again.’ It is still there. It is still being asked. It is current.”—[Official Report, Delegated Powers and Law Reform Committee, 10 September 2019; c 24.]
In effect, he wanted to cut out the Electoral Commission, but that antidemocratic ruse was seen through straight away. Mr Russell was rumbled. That led to Mr Crawford’s committee saying that the evidence was in favour of the Electoral Commission testing a previously used referendum question and that Mr Russell should come to an agreement with the commission prior to stage 2. I am pleased to hear that Mr Russell has reined back on his rhetoric.
In an intervention on Mr Rumbles, I said that the bill is being rushed through. That is my view. The Government wants to push it through before the end of the year. It is a serious bill, to which there might be a number of amendments. In my view, there simply is not time for that. If we are to put through such legislation, it needs to be done properly and not rushed.
15:57John Mason (Glasgow Shettleston) (SNP)
I am grateful for the opportunity to take part in the debate.
I joined the Finance and Constitution Committee after the summer, shortly after it had commenced its work on the bill. Although it is quite a technical piece of legislation, it has created a lot of interest, and it deals with many factors in addition to the wording of any question.
I think that there is widespread agreement that there should be such framework legislation so that we do not need to keep reinventing the wheel every time we have a referendum. In the past, I have felt that we should move towards having more referenda on more topics, as happens in countries such as Switzerland and the United States.
We have tended to have referenda on major constitutional questions—for example, the first time that I voted was in 1975, in the European Communities referendum—but some people have believed that we should also have referenda on major moral questions, as has happened on abortion in Ireland. Potentially, we could also use them for local issues, as I think happened for the 1996 decision on Rutherglen leaving Glasgow.
However, I have to say that the 2016 referendum has made me a little more wary of this form of decision making. If a Government gets a big majority of the kind that was obtained in 1975 and 1997, I believe that a referendum can give public endorsement to politicians’ proposals, but a close or disputed referendum, such as those in 1979, 2014 and 2016, clearly does not lead to widespread acceptance and might just lead to demands for a further opportunity to vote.
Patrick Harvie
I point out that in 1997 there was also a referendum in Wales, which led to an extremely close, knife-edge result. It is the form of leadership by those on the winning side that creates a sense of being able to move on beyond a knife-edge result. That should involve reaching out and attempting to implement the result in a way that brings people together, which is where there has been a failure in relation to the 2016 referendum. There has been a sense of winner takes all.
John Mason
That is a good point, because Wales has built on what was a very close result in 1997. As someone who spent their summer holiday in Wales this summer, I think that there is a lot of agreement on the fact that Welsh devolution is supported.
Neil Findlay
Will the member take an intervention?
John Mason
Not at the moment. I want to make progress.
The issue that I mentioned raises the question of who makes decisions for a country. Should it be Parliament, as representatives of the people, or the people themselves by way of a referendum? In England, the tradition is sovereignty of the crown or Parliament, whereas in Scotland we would emphasise the sovereignty of the people.
It seems that if we are to have the people making such decisions—I agree that we should aim for that—we also have a responsibility to ensure that the public is well informed. That happened to a large extent in 2014, when the Scottish public was well informed about independence, and, almost as a by-product, about the European Union. I believe that that was one reason for the different results in 2016: the Scottish public was already well informed about the European Union, whereas it seems that in many parts of the rest of the UK, the public was not so well informed.
I move on to some of the specifics of the bill. The question whether primary or secondary legislation is required must be answered each time. Paragraph 30 of the committee report was a bit of a compromise, and I think that we would agree that, in a sense, it was a bit clumsy. Nonetheless, the result is that the committee recommends that primary legislation is always required for constitutional issues and usually required for other issues.
On political literacy, paragraphs 90 to 94 focus on young people. The suggestion seemed to be that school pupils who do modern studies generally have a good understanding of the issues, but that many other young people do not. I take the point that Jenny Gilruth made in her speech. I guess that the same might be said of the wider population, in that, clearly, some people have a better understanding of issues than others.
A linked theme appears in paragraphs 169 to 172, where we consider whether there should be public funding for either side of a campaign. I understand that such a provision has been used in Ireland, where a change to the constitution required a referendum, but there was little public interest, so the campaigns needed a funding boost. However, both the committee and I felt that that had not been the experience in Scotland, where referenda have generally been contentious and created a lot of interest. The risk is that public funding might well lead to increased public suspicion of the process.
Which expenditure needs to be reported, and the fact that staffing costs can be omitted, has always struck me as odd. One organisation that I was involved in for the 2014 campaign spent a large part of its budget on staffing, but that did not have to be reported anywhere. Another area that is not reported is that of donations and assets before an organisation is registered, which, again, strikes me as odd. Paragraphs 151 to 154 ask the Government to consider that.
Paragraphs 73 to 80 consider whether a referendum threshold should be a simple majority, a supermajority or a required percentage of the electorate or of turnout. International evidence is against requirements other than a simple majority, as they are often open to misuse and can encourage people not to vote at all. I support the committee view that we should stick to a simple majority. Having said that, our experience of 2014 and 2016 tells us that winning by 52:48 or 55:45 comes with challenges. We may need to win by at least 60:40, and possibly by 70:30, in any referendum, if the decision is to be widely accepted. For example, in 1997, the decision to have this Parliament was won by 74:26. My personal feeling is that, if possible, it is better to wait a bit longer before holding a referendum, so that we are more likely to get a strong endorsement one way or the other.
Finally, on the issue of the actual question, the committee came up with wording that asks the Scottish Government and the Electoral Commission to come to an agreement, presumably with a bit of compromise on both sides. That is not how it was portrayed in much of the media, but that is why it was a unanimous report. We did not say that it should or should not be tested again; we just called for an agreement. I welcome the Electoral Commission’s latest briefing, which says that it would welcome any constructive discussions. Personally, I do not care too much exactly what the wording of the question is.
The Deputy Presiding Officer (Linda Fabiani)
You must come to a close, please.
John Mason
Nor do I care too much about the timing. I just want us to win the next independence referendum, I want us to win it well, and I want Scotland to be free again.
16:03Neil Bibby (West Scotland) (Lab)
The Finance and Constitution Committee has produced a balanced and fair analysis of the bill and issued a set of reasonable recommendations. It is now for the Parliament to decide whether the bill is desirable.
I agree with Bruce Crawford that we should aim for consensus in our politics. However, as we have seen over the past few years, presenting a binary choice as the solution to complex problems can cause real difficulty in a modern parliamentary democracy. It can feed a political reductionism that polarises and drives people apart, instead of establishing consensus around a solution.
I have no hesitation in saying that I support a final say referendum on the issue of Brexit. However, I only support a confirmatory EU referendum because it is a vehicle to confront the problems created by the last one.
A referendum is a relatively rare part of the democratic process, especially in this country. Referendums have a role, but as I have said, we must learn the lessons of recent times and consider the fractious politics that referendums have created. Enhancing and reinvigorating the political process in a parliamentary democracy and giving people a real say over their future is about so much more than a single event. It can be about electoral reform of the House of Commons and replacing the unelected House of Lords to make our representative democracy more representative, or an end to the creeping centralisation that undermines and marginalises local government.
As others have said, committee witnesses recognised that there is a place for a generic framework governing referendums. However, in key areas—particularly question testing—the committee found no support for the Government whatsoever. The testing of referendum questions by the independent Electoral Commission should be automatic in every case as a matter of principle. If that does not happen, it will undermine public confidence and the legitimacy of any potential referendum process. The Electoral Commission provides objectivity and impartiality. It should be the safeguard that gives the public reassurance that elections and referendums are fair and properly conducted and that the results can be trusted.
Professor Fisher, Professor Chris Carman, Dr Renwick, Dr Andrew Mycock and Dr Toby James all supported the testing of any question. The cabinet secretary argued that because the Electoral Commission once approved the wording of a particular question in a particular referendum, the same question should be used for evermore, and that the Electoral Commission’s testing is somehow irrelevant in that case. I am pleased that the cabinet secretary is moving away from that position today.
Dr Alan Renwick said that lack of testing would be “a retrograde step”. Dr Andrew Mycock said that testing is
“appropriate for every referendum—if it is repeating an issue or if the material circumstances have changed—to go through that process”.—[Official Report, Finance and Constitution Committee, 11 September 2019; c 30.]
The Scottish Government tells us that it supports a second independence referendum now precisely because material circumstances have changed. The Government cannot have it both ways.
The Scottish Government tells us that the bill is about any referendum that the Parliament wants to put to the people. Let us not kid ourselves. There is only one referendum that the SNP wants us to agree to and it is the second independence referendum, which the bill in its current form does not cover and cannot cover without a section 30 agreement. In the same way that David Cameron called a Brexit referendum to deal with divisions in the Tory party, Nicola Sturgeon is using the bill to keep the nationalist grass roots happy.
For the record, I do not support a second independence referendum. The Labour Party voted against a second independence referendum in the Parliament and, as Richard Leonard has made clear, we will do so again, if necessary. However, whether the bill is about independence or not, it is flawed.
Throughout the committee scrutiny, witnesses raised concerns about how any future referendum would be scrutinised. The use of regulations would minimise public participation and weaken the ability of the Parliament to interrogate issues and hold ministers to account. In his evidence, Dr Renwick said:
“A decision to hold a referendum is a major decision, so it should be subject to the greatest level of scrutiny in the representative system.”—[Official Report, Finance and Constitution Committee, 4 September 2019; c 11.]
Using regulations instead of primary legislation, as proposed, weakens scrutiny. The committee heard from no one outside the Scottish Government who was prepared to justify that use of regulations. The nearest that anyone came to offering support was the Law Society of Scotland, which said that scrutiny should
“take the form of an act or, at the very least, a Scottish statutory instrument that is subject to the super-affirmative procedure, but that would be a very sub-optimal position.”—[Official Report, Finance and Constitution Committee, 4 September 2019; c 32.]
When it comes to a referendum, I believe that primary legislation should be used in all cases.
There are other areas that need to be addressed, such as imprints on digital campaign material, the Electoral Commission’s powers to obtain information and better reporting of campaign spending and assets. Patrick Harvie made a number of good points on that.
As Alex Rowley said, the people of Scotland and the people of the UK have not been well served by years of constant constitutional wrangling. They are fed up with it. They are tired of the UK Parliament being consumed with debates about nothing but Brexit. They are tired of the Scottish Parliament’s—and specifically the SNP Government’s—obsession with independence.
Today is a perfect example of why we should be debating other issues. As Neil Findlay said, the bill does nothing to improve people’s lives. Education standards are falling, the national health service faces a workforce crisis and local services are suffering from chronic underfunding. It is time for the Government to get back to what really matters.
Brexit is a big mistake. It is a warning about the profound challenges, costs and complexities of breaking up institutions that are so fundamental to how we are governed. Scotland should avoid making the same mistake by leaving the UK. Independence is not an alternative to Brexit—it is an equivalent and one that would be even worse for the Scottish economy.
The concept of a generic framework for referendums may be sound, but what this is really about is one referendum and one referendum only. There are fundamental flaws in the bill. We will not support another independence referendum, we will not support a rigged process and we do not believe that the Referendums (Scotland) Bill should proceed.
16:09Colin Beattie (Midlothian North and Musselburgh) (SNP)
I am pleased to have the opportunity to speak in this debate on the Referendums (Scotland) Bill. First, I emphasise that the bill is not focused simply on holding another independence referendum, although I am well aware that some members may focus solely on that aspect. The bill would allow for a strong framework for future referendums of any nature in Scotland. While it would provide us with the power to allow referendums to be held, it would also give us a chance to format rules, questions and legislation that are strong and well intentioned and which would hold our Parliament to account.
We have an opportunity to put in place a robust structure that would provide the people of Scotland with a high standard for future referenda. We could avoid the catastrophic shambles of having a distorted and divisive referendum of a similar nature to the Brexit referendum, which has done little except to leave voters disengaged and disillusioned by the misinformation that was fed to them as a means to an end. The provisions in the bill for campaign rules, which are particularly prominent, would ensure that campaigns were both fair and transparent. We do not want any more campaigns in which incorrect information about the NHS is plastered on the side of buses by self-seeking politicians.
Neil Findlay
The member is absolutely right about mistruths being told about the NHS. Does he remember what was said in the independence referendum? It was said that if we did not vote yes, Scotland’s NHS would be privatised.
Colin Beattie
To be honest, that has no relevance to what I am talking about in relation to the bill.
We need to re-engage the public with truthful, honest and fair politics, and enacting a bill that ensures that we will have comprehensive processes and open debate is a positive first step in making politics once more accessible and open.
The Brexit advisory referendum—yes, it was only advisory—clearly sets a precedent that we need to consider seriously when we set our own framework for referenda. Serious consideration has to be given to how an advisory referendum became the “settled will” of the people of all of the United Kingdom. In fact, of course, it did not reflect the views or wishes of the people of Scotland, and that has created a new impetus for the need to hold within the Scottish Parliament the appropriate powers for any future referenda.
The residents of Scotland have a fundamentally different opinion on Brexit, but they are being forced to submit to an alternative reality, although it is against their values and democratically expressed wishes. All that has come about as a result of an advisory referendum, not a legally binding one. Surely the fact that the clear majority view of the Scottish people can so easily be disregarded is a cause for grave concern. Throughout the entire Brexit process, Scotland has been treated with contempt by Westminster. We voted overwhelmingly to stay in the EU, and we have been ignored. Not only that, but our Parliament has been prevented from protecting the interests of the Scottish people. We must not disempower our people by denying them the ability to make their own decisions on such life-changing matters; that is why it is so important that we support the bill.
As we are all aware, the franchise was extended to include 16 and 17-year-olds for the independence referendum in 2014, and then for all following Scottish elections. The fact that those young people were denied a vote in the EU referendum in 2016 has left their voices unheard and has denied them access to democracy. In Scotland, various studies have concluded that 16 and 17-year-olds are perfectly capable of engagement and making informed decisions. Through the referendum bill, they would have a guarantee that they will not be excluded from the decision making that is vital to their futures, as they were in 2016.
Similarly, we need to secure the right for EU citizens to have the ability to exercise their democratic right. During the 2016 EU referendum, many of their experiences were very unsatisfactory. We need to ensure that their rights are protected and we need to make them feel welcome. We need to have provisions in place to guarantee that the mess that took place in 2016 is not replicated, and I do not think that we can trust Westminster to protect the rights of EU citizens.
A hallmark of the Scottish Parliament is that the structure of this establishment promotes and encourages cross-party collaboration. Rather than having a Parliament that is divided and paralysed by our differences in opinion, we can generally find areas on which we can agree or find common ground. It is difficult to deny that we are operating with fundamentally different values from those that Westminster is exhibiting. The bill will give us the power to draw on our abilities to work together across parties, to scrutinise, debate and approve rules and procedures for future Scottish referenda.
When we already know that the Scottish people emphatically do not want Brexit, we cannot simply wait to see what fate the UK Government decides to impose on us. We are all aware that, even in a best-case scenario, the people of this nation will be worse off. Morally, we have a duty to our people to ensure that we have some influence over that outcome, even if the Westminster regime seeks to thwart that democratic duty. As a result, there is just cause for Scotland to have the power to ensure that our country has a say over huge constitutional and economic changes, such as Brexit, and that Scotland’s views are heard and respected, especially when people overwhelmingly tell us that they do not want something. We have an opportunity to ensure that the people of Scotland are presented with referenda that are built on a proper framework, which is well considered, carefully constructed and has legal standing.
This debate is not about whether members want a second referendum on independence or Brexit. It is about whether they believe that the people of Scotland deserve the right to something better than the desperate aftermath of Brexit, which will be brought about as a result of deceit and flimsy legislative chicanery. It is about whether members believe that the people have the right for their decision to be respected. It has been a long time since the UK comprehensively reviewed the framework governing referenda. It is more than reasonable for our Parliament to seek higher standards on such an important issue. The bill has been welcomed by the Electoral Commission, the Electoral Management Board, the Faculty of Advocates and the Institute for Government. It is common sense that all of us in this Parliament should welcome it, too. The people of Scotland, whom we serve, deserve no less.
16:16Donald Cameron (Highlands and Islands) (Con)
Usually, I welcome the opportunity to speak in this chamber, especially on legislation and matters that will have a meaningful impact on the lives of the people whom we serve, as Colin Beattie said. Unfortunately, I cannot do that today, because the bill does not address those concerns. Yet again, as I have done so often in this chamber since 2016, I find myself talking about the constitution. These issues are not unimportant, but when it comes to the Parliament’s priorities we do a huge disservice to the people whom we represent by debating bills such as this at the current time.
Neil Findlay was right. How many of us have had constituents who have come to surgeries, or people with casework, who have demanded a referendums bill forthwith? Precious few, if any. We should, of course, be debating health, justice or the environment. Yesterday, we heard how few debates there have been on education in Government time. When the First Minister states, in this chamber and in her recent party conference speech, that her top priorities are the education system and the NHS, but we spend valuable parliamentary time talking—yet again—about the constitution, how can we believe her?
Michael Russell
I respect Donald Cameron’s point of view, but I disagree with it. If what he says is true, how much truer would it be for an entire election campaign to be predicated on the Prime Minister’s “get Brexit done” slogan, and, because of Brexit, for no significant legislation to be passed in the previous three years at Westminster? If he believes that debating this bill is a problem, does he not see that the Brexit situation is also a major problem and that it is a Tory problem?
Donald Cameron
Coming from a Government that spent the first 18 months of this parliamentary session debating Brexit, that is a bit rich.
In principle, a bill covering referendum legislation might be appropriate. However, it is clear to us on the Conservative benches that this bill is simply a vehicle for the Government to hold a second independence referendum and, for its own purposes, to frame it in the most favourable means possible. Even Mr Russell admitted that to the Finance and Constitution Committee, when he said:
“We have never hidden the fact that I see this bill being used by the Parliament and the Government to create the referendum for independence.”—[Official Report, Finance and Constitution Committee, 25 September 2019; c 4.]
However, putting that fact to one side, it is clear from today’s debate that, if the bill is to pass, many issues will need to be addressed at stage 2.
We see the bill for what it is and we will not vote for it today. However, if it passes stage 1, we will work where we can to make sure that the bill puts power in the hands of Parliament and not ministers.
The Law Society of Scotland said that
“we were concerned that the Bill will have the effect of reducing the time for Parliamentary or public scrutiny of a future proposal for a referendum”
and that
“as currently drafted there is no requirement for Parliamentary or public consultation and draft regulations would not be amendable or be subject to the level of scrutiny and accountability which should be applied to important or constitutional questions.”
That is an understated but breathtaking criticism of the bill from a respected organisation, which further reinforces the impression that the Government is attempting to bypass Parliament.
I looked in vain for a provision in the bill that states that the Government will respect the result of referendums. There was no sign of that in the bill. I wonder why? The ultimate irony is that the Government is putting through legislation on referendums, when it has ignored the results of two referendums held in this country in the past five years.
There are other concerns with the bill, about which I will go into detail; they have also been touched on by other members. I commend the Finance and Constitution Committee and its convener, Bruce Crawford, for the committee report and for his typically measured speech. As members have noted, the bill is faulty. The Institute for Government said that, as it stands, the bill would
“undermine the legitimacy of any referendum.”
That is a damning indictment. Specifically, the institute noted that the lack of a requirement for the Electoral Commission to test a previously used referendum question is one of many reasons why the bill could have that effect. The bill diverges from precedent on that, because in every UK referendum since the creation of the Electoral Commission, it has tested the proposed question to ensure that it is comprehensible to voters and will not bias the outcome.
The Finance and Constitution Committee report states that
“the International Institute for Democracy and Electoral Assistance use the Electoral Commission’s process for question testing as an example of good practice”
and that
“the Independent Commission on Referendums, through the role of the Electoral Commission, has one of the most rigorous processes for assessing referendum questions.”
My question to the cabinet secretary, in all sincerity, is this: what is he so fearful of? The Electoral Commission is an independent organisation that will test the question. It gives me and my Conservative colleagues significant cause for concern over why that provision exists in the bill in the first place. We feel that the bill must be rectified to ensure that there is no partisan bias in setting such a question.
Like others, I am also concerned about the extensive powers that the bill affords to ministers and its attempt to reduce Parliament’s role in scrutinising future referenda. The point has been made forcibly by others, but the question of primary legislation is incredibly important. The bill states that actions to set referendums should be carried out by secondary legislation. The Finance and Constitution Committee report quotes the cabinet secretary attempting to justify that by arguing that
“we should not see all referenda as the same”.
How can that be accepted? I do not accept it and nor, it appears, did the Finance and Constitution Committee, which states that, in terms of constitutional issues, referendums must require primary legislation and that all other referendums will ordinarily require primary legislation.
It is clear to Conservative members that the bill is simply an attempt by the Government to initiate a referendum on independence. It is a clear attempt to ram that through with no oversight or scrutiny and to give ministers the means to mould the question in the way that best suits their desired outcome. We will play no part in that today and I urge others to do likewise.
16:23Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
I will pick up on what were almost the last words that we heard from Donald Cameron about there being no oversight or scrutiny of secondary legislation. That is unmitigated tosh, if such a word is allowed to be used in the chamber. That can be illustrated by the current activities of the Environment, Climate Change and Land Reform Committee in looking at the deposit return scheme, which is being introduced by secondary legislation. The committee and Parliament have decided that there will be an extended period of consideration and the committee will produce a report. There will therefore be evidence. That is exactly the process that we would have in scrutiny terms—
Mike Rumbles
What tosh!
Stewart Stevenson
I say to Mr Rumbles that that is exactly the process that we would have for scrutiny of primary legislation.
Adam Tomkins
Will the member take an intervention?
Stewart Stevenson
Adam Tomkins refused me three times. I ask him to please sit down.
I readily acknowledge that there is a difference between primary and secondary legislation in terms of accepting and rejecting it, but that is a decision-making difference, not a scrutiny difference. Members should take account of that. In that regard, I was very surprised by Adam Tomkins’s opening remarks when he said that Parliament could not debate secondary legislation. Someone of his experience and educational background should know better. Of course, I have been involved in politics a lot longer than him. In fact, I participated in three parliamentary elections before he was born.
I will now draw on some of that experience to consider the detail of what is before us, as this debate is about the detail of the bill.
On the functions of chief counting officer and other counting officers under section 9(4), I suggest to Mr Russell and the Government that it would be useful if we also gave the number of ballot papers that were issued. That is something that political parties know, but the public do not. We might have a wee think about that.
Turning to section 10(3)(d), which identifies
“a person providing goods or services to the counting officer,”
I think that we might also consider whether we should include a person providing services to someone who wishes to vote. If public transport failure means that someone cannot get to the polling station, that would be of a similar character. We should look at those provisions.
Section 13, on campaign rules, is about
“the conduct of campaigning”
and
“restricting the publication of certain material”.
We need to be careful to consider what rules might apply to those who are not directly involved in a referendum but who might be seeking to influence its outcome. I am thinking about newspapers and newspaper articles.
Section 16 is about the destruction, concealment or alteration of documents. I relate that to paragraph 38(1) of schedule 2, under which the ballot papers must be retained for a year. However, there is no such provision in relation to the materials that a campaigner might have, saying how long those materials should be retained for. One of the problems with previous referendums has been that the campaigns fold up and disappear quite rapidly after the result is declared. There is a case for saying that the materials that they produce should be retained for a specified time. I will not say how long but, if it is a year for the ballot papers, that gives us an insight.
On section 20, on the attendance of the Electoral Commission at proceedings, and sections 21 and 22, there is no direct provision for the attendance of international observers at referendums. We would generally accept that that is part of good practice. I am not saying that the bill as introduced prohibits that from being provided for; there are ways in which that can be done, at section 20(4)(c), which specifies
“a person appointed by the Electoral Commission for the purposes of this section.”
However, that kind of conflicts with paragraph 15(2) of schedule 2, under which the presiding officers also have power—and they are the people in the polling stations. Indeed, I turn now to some of the powers that they have under the bill—some of which are slightly odd. The presiding officers may decide who is admitted to a polling station, without restriction. That seems a very broad thing, and different decisions could be made in different polling stations. That is unhelpful for the integrity of any vote, whether on a referendum or on another subject.
On the casting of votes, proposed legislation of this kind might sensibly at least make provision for the future bringing forward, by secondary legislation—being a subject that we could debate—of electronic voting as an additional means of voting. The bill as introduced is silent on that.
According to schedule 2:
“The hours of polling are between 7am and 10pm.”
I think that, for major events such as these, it is time to think about whether polling should take place over three days—a Thursday, Friday and Saturday. If we make big decisions, they should be made by the maximum number of people.
There is also an issue about ballot boxes. We should ensure that a minimum number of votes should go in a ballot box. I know of a ballot box that gets only four votes in it so, when it is tipped out, the secrecy of the ballot is compromised.
I will now conclude—as you are indicating that I should, Presiding Officer—by saying that there have been local authority referendums before, of which Strathclyde water and Edinburgh road charging are examples. Those are referenda—oh dear; I mean referendums—that would have benefited from a structure such as that proposed in the bill, as indeed would the 1934-35 peace referendum, which was on whether the UK should stay in the League of Nations. Even I was not around then, although some might suggest so.
Finally, I counsel my colleagues that “referenda” is not the plural of “referendum”, which is a fourth-declension noun. “Referenda” means something altogether different, and is a plural gerundive.
The Deputy Presiding Officer
Every day is a learning day.
We move to the last contributor in the open debate, who is Gil Paterson.
16:30Gil Paterson (Clydebank and Milngavie) (SNP)
I am pleased to speak in the debate despite the fact that I am not a member of the Finance and Constitution Committee.
It is very timely that we are now debating the principles of the Referendums (Scotland) Bill, which was introduced recently. When I talk to ordinary people, it is quite clear to me that their trust in the concept of the referendum has been somewhat shaken by the Brexit controversy. I am not here to knock Brexit, which members might be in favour of or against; I want to talk about the referendum process and how that might have happened a bit differently.
Although I fear that referendums themselves have now been discredited, the EU referendum process could have been somewhat different. The fact that a non-binding question was utilised, which then became binding, led to the first breach of people’s confidence. There should not have been one question. If it was intended that matters such as whether to remain in the customs union or the single market were to be decided by vote, I feel that there should have been at least three questions for people to consider. In my view, if those had been put in place in the first instance, a wholly different picture would have emerged compared with what has happened at Westminster in the more than three years that it has taken for us to arrive at the bad place in which we now find ourselves. I also believe that the Brexit process would have been finished by this time, because the rancour and argument have not been based on whether we should leave—I think that people understood that question and made their decision—but came into play in the time after that. That has upset me.
I have looked at referendums that have been held in other places. As John Mason indicated, the referendum is a major tool in many European democracies, such as Ireland. It is used in a very positive manner to consult on a range of issues and to engage with the public—and the public do engage. At the same time, such countries give the public ownership of very difficult issues. If the political classes like us give ownership when we make important decisions, we can implement those decisions much better. That is a much more tried and trusted way to go about business and it provides one of the biggest benefits of the referendum process.
The bill illustrates another benefit—long-term planning—which we in this country do not do very well. For instance, all the parties that are represented in the Parliament agree that the national health service is very special, but we fight over it like cat and dog almost daily. We attack it, score points and talk about waiting times and ambulance shortages. I put my hand up to having done that in the past. The Opposition does it at the moment. If my party were in Opposition, guess what—we would be doing the same thing.
However, another way to deal with such matters would be to use a bill such as the one that we are debating. We could all come together over an issue such as the health service and come up with a 10-year plan to which we would all sign up. We could put that plan to the people, and ask the basic question first, which I am sure that everybody would agree with, such as, “Do you agree with a publicly funded national health service?” That would be point one. Under point two we might go on to ask, “Do you agree to pay a penny in the pound in tax, if we give a guarantee that we will spend every penny of that on the national health service?”
Therefore, it would not be a one-question approach but maybe a two or three-question approach—if we first agreed to sign up to a 10-year plan. That is what happens in most European countries; the political classes get together and fundamentally agree on something that should happen, although difficult issues might arise.
The bill is a way to implement such an approach and for us to look at doing things somewhat differently in the future. It provides a way for us to get together and take ownership of something such as the health service—which is so precious to us all and to the public—talk to the people, come up with a resolution and work to the 10-year plan. That way we would take the matter right out of politics. The health service should not be a political football that we kick all the time, because that is to the detriment of the service and the people in it.
I understand that my colleagues in the Conservative Party and elsewhere are looking at the independence referendum. I am looking well beyond that and at where we can make good use of a proper process within the bill in order to make change for the better.
The Deputy Presiding Officer
We move to the closing speeches.
16:36Alex Rowley
In closing for Labour, I would like to reiterate why we will vote against the bill. Our reasons are twofold. First, the bill is not fit for purpose. As members across the chamber have pointed out, evidence to the committee was highly critical of a number of provisions in the bill, namely the granting of ministerial powers to hold referendums by secondary legislation, and testing of questions by the Electoral Commission. I almost used the word “referenda”, but I stand corrected by my colleague Stewart Stevenson.
Given how fundamental those flaws are, they alone would be enough for us not to support the bill, but on top of that, the entire bill has been phrased in the context of an independence referendum.
I note that when Donald Cameron talked about the First Minister’s priorities being education and health, the cabinet secretary intervened and said that three years have gone by that at Westminster have been completely wasted because the UK Government has not been able to focus on the big issues. The cabinet secretary attacked the Tories for that—rightly so—but that point, which he made, is the very point that many members are making today. Where is the demand in Scotland right now to create a referendum bill that will give us more referendums and more of the same type of problems?
A fair point that Neil Findlay tried to get across was that in parts of his constituency where there are no general practices and public services are in decline, the issue is not “Let’s have a referendum bill.” It is “Let’s fix our health service, and let’s address why our education service is going backwards and children are being denied the opportunities they should have in education.”
I also want to pick up on the point that Alexander Burnett made about a pretence that the legislation is not about independence. As I said earlier, in fairness, the SNP has been very up-front and clear; the introduction of the bill is to pave the way for an independence referendum, not at some time in the distant future, but next year.
The reality is that even the people who say that they would support independence if there was a referendum are not demanding that we have a referendum right in the middle of the absolute chaos that we are in as a result of a failed Tory—
Michael Russell
I do not think that Alex Rowley understands the central point. In order to escape from Brexit, Scotland has to able to choose its own constitutional future. That is the key. We cannot just sit and wait for it to be done for us. That might be good enough for Labour, but it is not good enough for Scotland.
Alex Rowley
Michael Russell says that an independence referendum is a way out of Brexit, but it is not. It would create more and greater chaos. Would we be in Europe or out of Europe? Would there be a hard border between Scotland and England, or not? Would we lose the biggest trading partner that we have in a free market, in the United Kingdom? It would be a recipe for even more chaos, which is why Labour cannot possibly support the bill.
I urge the SNP to take the bill back and think again. It is not in Scotland’s interests. Ultimately, it is about one referendum—Nicola Sturgeon has made it clear that it is being put in place to pave the way for an independence referendum in this session of Parliament.
Richard Lyle (Uddingston and Bellshill) (SNP)
Hear, hear!
Alex Rowley
Richard Lyle says, “Hear, hear!” but what would the proposition be? Would we have independence in Europe, with the countries of the European Union telling us what the rules will be and whether we will have a hard border with England? If so, it would not be £12 million of trade that would be at risk, but £50 million. That is the reality of the bill and that is why the SNP must think again, reject the bill and take it back. Let us start fighting for the issues that will change the lives of people in Scotland.
The Deputy Presiding Officer
The chamber has very quickly gone silent.
16:42Murdo Fraser (Mid Scotland and Fife) (Con)
The first question to ask is what exactly the debate is about. We have heard lots of different interpretations from around the chamber. We cannot, until we answer that question, really take a view on the bill that we will be asked to vote on in a few moments.
The bill sets out the framework for holding future referendums. At the start of the debate, Adam Tomkins set out why we are right to be cynical about what exactly it seeks to achieve. Unlike in other jurisdictions, such as Switzerland, there is no particular tradition of holding referendums in this country, although I thought that Gil Paterson made a very decent case for why we should perhaps rethink that approach. In our tradition, we have tended to hold referendums when major constitutional questions have had to be put, such as on devolution in 1979, Scottish independence in 2014, or membership of the EU in 2016.
When the bill team came to the Finance and Constitution Committee and they were asked whether they had in mind any topics to put to a referendum, other than the question of Scottish independence, they were unable to come up with any suggestions.
Mike Rumbles
Does Murdo Fraser agree that the bill is clearly a partisan bill because, at decision time tonight, only members from the two nationalist parties will be voting for it?
Murdo Fraser
I think that my friend Mike Rumbles might well be right. We will see the two nationalist parties in the chamber combining, because they know what the bill is really about. It is all about independence.
As Adam Tomkins reminded us, Michael Russell told the committee:
“We have never hidden the fact that I see this bill being used by the Parliament and the Government to create the referendum for independence.”—[Official Report, Finance and Constitution Committee, 25 September; c 4.]
That has been clear in the debate. We have heard from people on different sides—Angela Constance and Alex Rowley, for example—arguing the substance of the cases for and against independence. Having that basic knowledge of what we are actually taking about with regard to the bill has to influence our approach to the legislation.
Beyond that, there are serious flaws in what is proposed. We are being asked to vote on what is simply bad law. The bill is flawed in two key areas. The first relates to the power that would be given to Scottish ministers to call referendums by means of secondary legislation, which is an approach that was slammed by witnesses. In its submission, the Institute for Government said that the bill would “undermine the legitimacy” of any referendum and that
“it is imperative that the Scottish government avoid the perception that it is seeking to avoid full scrutiny of any ... referendum proposal by intention, or as a consequence of a desire to fast-track the process.”
That view was echoed by Alan Renwick, whose views have already been quoted in the debate. He said:
“I have found no well-functioning parliamentary democracy that gives Ministers blanket authority to call a referendum by secondary legislation.”
The Faculty of Advocates and the Law Society of Scotland took similar views.
Graham Simpson, who is the convener of the Parliament’s Delegated Powers and Law Reform Committee, reminded us that his committee said that constitutional referendums should require primary legislation. That view was echoed by the Finance and Constitution Committee.
I was pleased to hear the cabinet secretary accept that a constitutional referendum would, indeed, need primary legislation. In his words, “a short bill” would be needed, but I hope that, should we ever get to that stage, there would not be an attempt to avoid detailed parliamentary scrutiny, because it sounds to me that the use of the words “a short bill” means that that would happen.
The second area in which the bill was found wanting relates to the testing of the referendum question. The Finance and Constitution Committee heard a great deal of evidence on that. The Electoral Commission was very clear in its view that it would need to test properly any question that was to be asked, even if it had been asked previously. That is because, in its view, “contexts can change”. The Scottish ministers’ ambition that a question that has been asked previously should not be retested is simply not supported by the evidence.
That is important in the context of a potential future independence referendum. In the light of experience, we now know that, in any referendum in which a yes or no question is asked, those on the yes side have an inbuilt advantage from day 1, because “yes” is a positive and affirming word, and it is easier to get people to agree to a proposition than to disagree with one. It is precisely for that reason that the 2016 referendum did not ask a yes or no question. Instead, the question was framed around “leave” or “remain”. Views on the issue have changed since 2014, and it is for that reason that the role of the Electoral Commission in determining any question that is asked is vital.
Bruce Crawford
I am speaking as the convener of the Finance and Constitution Committee, so I will make this a question about fact. Does Murdo Fraser think that the Electoral Commission got it wrong for the 2014 referendum?
Murdo Fraser
Time has moved on. We are five years on from 2014, and we have more experience of referendums and the testing of questions. In 2016, the Electoral Commission did not agree to a yes or no question.
The bill is an attempt by the SNP Government to gerrymander any future independence referendum and to rig its terms so that it is as favourable to the SNP’s cause as possible. That is simply not acceptable. It should not be acceptable to Parliament, and it is not acceptable to anyone who takes an objective view on how referendums should be run.
I will deal briefly with one other matter—the question of thresholds. I listened with great interest to John Mason’s case for referendum thresholds being higher than 50 per cent plus one, which has been the historical trend. I have often heard the case being made that it is bizarre that, when people want to change the constitution of a voluntary society or a golf club, a two-thirds majority is required, but we can change a country’s constitution simply on a majority of 50 per cent plus one. I can see the attractions of that argument, but there is no precedent for a threshold of more than 50 per cent plus one being used. I do not think that we should rule out creating a different threshold, but that might simply create more problems than it solves.
Stewart Stevenson
Will the member take an intervention?
The Deputy Presiding Officer
Mr Fraser is just closing.
Murdo Fraser
Although the bill might appear to be about referendums in general, we know that, in practice, it is about just one issue: independence. Even in that respect, the bill is fundamentally flawed. It seeks to give substantial powers to Scottish ministers to bypass Parliament and to grab power for themselves. In particular, it would give them the power to set the question in any referendum without proper scrutiny. That is unacceptable to the Scottish Conservatives, and should be unacceptable to Parliament.
We do not want another independence referendum and we do not believe that the public want another referendum. However, even if we did want one, the bill is not a suitable vehicle to take a referendum forward. For the reasons that I have given, Parliament should reject it at decision time.
16:50Michael Russell
What an unusual debate this has been! Let us stand back for a moment and consider what has been taking place this afternoon. Parliament has been debating a Finance and Constitution Committee report, which I have already strongly welcomed, along with the work of the Delegated Powers and Law Reform Committee, which also contributed to it. The report unanimously approved the policy objectives of the bill, but in the debate two of the four parties that are represented on the Finance and Constitution Committee have denounced the bill and said that they can have nothing to do with it. It was, indeed, denounced in ringing terms by the Tory spokesperson who is the deputy convener of that committee.
Moreover, that has happened in circumstances in which I made it clear in my opening statement that I accepted virtually all the recommendations that the committee made, including the most contentious one. I have said that I will do exactly what the committee has asked me to, which is to seek agreement with the Electoral Commission.
What an extraordinary afternoon! What it proves is that the issue is not about the bill—that is absolutely clear. [Interruption.] I was about to quote Professor Tomkins on that point, but I think that his laughter does it. Mr Tomkins said that it was not about the bill and he was absolutely correct. It is about the fact that some parties in this Parliament have contempt for the democratic views of the Scottish people and will never allow them to be heard. Let me prove that.
Mike Rumbles
Will the member take an intervention?
Michael Russell
No, I will not; I have a lot to get through and I took an intervention from Mr Rumbles earlier. A lot of good that did me, so I am not bothering again.
Let me prove my point by reference to two Tory speeches this afternoon. Mr Burnett made a speech that was an absolute tear jerker. It was an extraordinary defence of the Electoral Commission, which needed to be protected and respected in everything that it did, although I had indicated in my opening speech that I accepted all its recommendations. While Mr Burnett said that the Electoral Commission had to be protected and respected from even minor disagreement, there was sage nodding of heads on the Tory benches, indicating that that was absolutely correct and that Mr Burnett was, of course, speaking sense on behalf of every Tory—except that that is not true about the Tory party.
The following are the words of Alan Mabbutt. You may ask: who is Alan Mabbutt? He is the director general of the Conservative Party. He gave evidence to the House of Commons Public Administration and Constitutional Affairs Committee in June and—I am paraphrasing from a news report—he said that he did not support strengthening the Electoral Commission. He went on to heavily criticise its performance, he attacked it for handing out unfair fines and he said that it had taken the wrong tone with the parties and given “deficient” advice on electoral law.
Therefore, I am afraid that Mr Burnett’s view is not shared by the Conservative Party. I doubt whether it is even shared by Mr Burnett. It is an excuse to attack the SNP. It was nothing to do with the Electoral Commission. It was crocodile tears from Mr Burnett.
There was an even more dramatic moment with Mr Tomkins earlier. I heard Mr Tomkins telling the chamber in passionate tones that he is a strong defender of democracy—that he is the democrat here and that it is the SNP that is outrageously defeating democracy. At the same time, Libby Brooks, the correspondent for The Guardian who was covering Boris Johnson’s visit, was tweeting this:
“Boris Johnson tells reporters in Moray that he will not grant the powers for a second independence ref regardless of whether the SNP wins majority of seats in this election OR wins a pro-independence Holyrood majority in 2021”.
How is that for democracy? It does not matter how the people of Scotland vote; we will just ignore them.
Both things illustrate the truth of the Tory contribution to this debate. It is entirely, completely and utterly bogus, as is the attack on the question of the question. The question in the 2014 referendum is in current use. It has been used in more than 50 opinion polls, and it is clearly supported. In an opinion poll, 77 per cent of people said that they believed that it should be used again. Only 10 per cent take the Burnett and Tomkins view. That attack is therefore completely bogus.
Let me give the last bit of evidence that proves that. The person who summed up for the Tories tweeted:
“Leave/Remain and a Two-thirds majority required. Bring it on”.
That was his view of the question. That was what he wanted the question to be. I am afraid that the Tory position is threadbare and bogus; it is full of sound and fury and it signifies absolutely nothing at all. The Tories are against the Scottish people having their say, and they will use any excuse to push that issue.
The other speech that I want to mention is Neil Findlay’s. I find it astonishing that Neil Findlay cannot make the clear, direct and inevitable connection between a political system that allows a Tory Government to destroy the interests of Scotland and the poorest people of Scotland and to impose poverty and austerity, and the matter of the constitution. Why cannot he make that connection? If he made it, he would have to accept that the constitutional choice that the Labour Party has made has caused rather than alleviated the poverty of Scotland.
Neil Findlay rose—
Michael Russell
No, I am not taking an intervention from Mr Findlay. I have heard quite enough of him this afternoon. Unlike my view of the Tories, I do not believe that Mr Findlay’s point is bogus, but I believe that he is blinkered.
Let me now deal with one or two of the substantive points on the bill. On the issue of the primary and secondary legislation split, I carefully explained to both committees to which I gave evidence what the bill is. It was constructed in a way that put all the detailed arrangements for a referendum into one bill and ensured that the small number of things that would change in individual referenda would be dealt with in a separate process. That was entirely clear. If the committee does not want to have the process as it is, I am happy to say that we will have primary legislation. I said that at the opening of my speech. If that is really one of the key reasons why Labour could not give its support, it can give its support now. I have made that clear.
Daniel Johnson (Edinburgh Southern) (Lab)
Will the cabinet secretary give way?
Michael Russell
No. I am sorry, but I am not taking interventions, as I have a lot to get through. There has been a long debate, and Mr Johnson has not been here for it.
Throughout the whole process, I have been agreeable to change. If Labour was genuine about those changes, it should support the bill.
On section 37, which has been objected to, it has been recommended that electoral legislation be dynamic. That means that we can continue to change as circumstances change. Electoral administrators will tell us that that is required, and we should support that.
I started by saying that this is an unusual debate. This is also an unusual Parliament. That has been shown this afternoon. In a normal national Parliament, we would expect enthusiasm for enabling our voters to have their say. [Interruption.] I do not think that any Liberal Democrat should talk about trust. In a normal national Parliament, we would expect keenness to have a debate about how we enhance democracy, and there would be an acceptance that each and every member of that Parliament would vote for a democratic choice on the nation’s future. This debate has proved to me yet again that, because this is not yet a normal national Parliament, we should continue with the process of ensuring that we have a normal nation—and that is an independent nation.
I commend the bill.
7 November 2019
Financial resolution
A financial resolution is needed for Bills that may have a large impact on the 'public purse'.
MSPs must agree to this for the bill to proceed.

Financial resolution transcript
The Presiding Officer (Ken Macintosh)
The next item of business is consideration of motion S5M-195399, in the name of Derek Mackay, on a financial resolution for the Referendums (Scotland) Bill.
Motion moved,
That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Referendums (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.—[Derek Mackay]
7 November 2019
Vote at Stage 1

Vote at Stage 1 transcript
The Presiding Officer (Ken Macintosh)
There are two questions to be put as a result of today’s business.
The first question is, that motion S5M-19743, in the name of Michael Russell, on stage 1 of the Referendums (Scotland) Bill, be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
Against
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Griffin, Mark (Central Scotland) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Sarwar, Anas (Glasgow) (Lab)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Wishart, Beatrice (Shetland Islands) (LD)
The Presiding Officer
The result of the division is: For 65, Against 55, Abstentions 0.
Motion agreed to,
That the Parliament agrees to the general principles of the Referendums (Scotland) Bill.
The Presiding Officer
The second question is, that motion S5M-19539, in the name of Derek Mackay, on a financial resolution for the Referendums (Scotland) Bill, be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
Against
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Griffin, Mark (Central Scotland) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Sarwar, Anas (Glasgow) (Lab)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Wishart, Beatrice (Shetland Islands) (LD)
The Presiding Officer
The result of the division is: For 65, Against 55, Abstentions 0.
Motion agreed to,
That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Referendums (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.
Meeting closed at 17:02.7 November 2019
Stage 2 - Changes to detail
MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.
Changes to the Bill
MSPs can propose changes to a Bill – these are called 'amendments'. The changes are considered then voted on by the lead committee.
The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.
The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.
How is it decided whether the changes go into the Bill?
When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.
The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.
Depending on the number of amendments, this can be done during one or more meetings.
First meeting on amendments
Documents with the amendments considered at this meeting held on 27 November 2019:

First meeting on amendments transcript
The Convener (Bruce Crawford)
Good morning and welcome to the 27th meeting in 2019 of the Finance and Constitution Committee. I remind members to switch off their mobiles, or at least to put them on silent, so that they do not disturb the proceedings.
Agenda item 1, which is the only business on today’s agenda, is to deal with stage 2 of the Referendums (Scotland) Bill. I welcome to the meeting Michael Russell, the Cabinet Secretary for Government Business and Constitutional Relations, and his officials. I also welcome non-members of the committee to the meeting.
Members will be aware that we have a considerable number of groupings to consider and amendments to get through. I am mindful of the need to ensure that there is sufficient time to allow consideration of all the amendments, including those in the later groupings. Therefore, I ask members and the cabinet secretary to keep their contributions as concise as possible.
Section 1—Power to provide for referendums
The Convener
Amendment 76, in the name of Adam Tomkins, is grouped with amendments 77, 1 to 3, 78, 18, 23, 29, 42, 49 and 61.
Adam Tomkins (Glasgow) (Con)
Good morning, everyone. The first group of amendments concerns the power in section 1 of the bill to provide for referendums. Section 1 as drafted is extraordinary, because it allows for referendums to be called either by the authority of an act of this Parliament, which would be by primary legislation, or by ministerial order or regulation, which would be by secondary legislation.
There is no equivalent power in the Political Parties, Elections and Referendums Act 2000, which is the United Kingdom’s referendums legislation. The stage 1 evidence that the committee took from Dr Alan Renwick of the constitution unit at University College London was that there is no well-functioning parliamentary democracy that gives ministers blanket authority to call a referendum by secondary legislation.
The committee unanimously recommended that section 1 be amended so that at least constitutional referendums must require primary legislation and that all other referendums ordinarily require primary legislation.
I will speak not only to amendment 76, which is the lead amendment in this group, but principally to amendment 1.
Amendment 1 omits section 1 from the bill, replacing it with a provision that would mean that any referendum to which this legislation applies would need to be triggered by an act of the Scottish Parliament. I note that the cabinet secretary now supports that amendment, which I very much welcome.
Amendment 1 would mean that the bill would be identical to the equivalent UK legislation, PPERA, in that any referendum held on a devolved matter in Scotland to which this legislation applies would require an act of the Scottish Parliament to establish it. That is the clearest and simplest solution to the problem that section 1 as introduced poses. As I said, I very much welcome the Scottish Government’s apparent support for it.
Amendments 76 and 77 are alternatives to amendment 1, in the event that the committee does not accept amendment 1.
Amendment 76 would mean that any referendum on a constitutional matter would require an act of the Scottish Parliament. Amendment 77 would mean that any referendum on a moral issue would also require an act of the Scottish Parliament. In other words, no constitutional referendum and no referendum on a moral issue could be called by ministerial order or regulation.
I do not intend to move those amendments, if committee members indicate that amendment 1 is likely to be accepted. Amendments 76 and 77 are lesser alternatives to amendment 1, and are not designed to be moved in addition to amendment 1 if that amendment is agreed to.
I briefly turn to the other amendments in the group, which are all consequential on amendment 1. Amendments 2 and 3 are rival amendments to section 2. The cabinet secretary proposes to leave out section 2 entirely. I think that the understanding—he will be able to speak for himself in a moment, so he will correct me if I am wrong—is that section 2 becomes unnecessary or otiose if amendment 1 is accepted. I would happily support amendment 3.
My amendment to section 2 simply omits from it the provision that would enable regulations under the provision to modify any enactment. The committee took evidence from the Law Society of Scotland that that aspect of section 2 as introduced is too broad and gives ministers too much power to amend primary legislation by secondary legislation, which is always something that we should be alive to. Again, however, I will not move amendment 2 if it is clear that the cabinet secretary will move amendment 3 and the committee will support it. I prefer amendment 3, which leaves out the entirety of section 2, to amendment 2, which leaves out only three words of it.
As I said, all the other amendments in the group are consequential on amendment 1. Except for amendment 78, which is in my name, they are all in the name of the cabinet secretary. We will support his amendments. Amendment 78 is on one further aspect of the bill that requires to be amended in the event that the ministerial power to trigger referendums by regulations is removed from section 1. It simply omits the words “(including this Act)” from section 3(1)(a). That means that the provisions in section 3 on referendum questions would apply where
“provision is made by or under an Act of the Scottish Parliament for the holding of a referendum”.
We do not need the words “(including this Act)” in that sentence, because no referendum is to be held under this legislation. The bill does not contain provision for the holding of any referendums, so those words are not needed. The section would be neater, cleaner and more accurate if we were simply to omit those words; that is the force of amendment 78.
I repeat that we would be happy to support all the other amendments in this group in the name of the cabinet secretary.
I move amendment 76.
The Cabinet Secretary for Government Business and Constitutional Relations (Michael Russell)
It is always my approach to a bill—members of the committee know this, because we have been in this position before—to seek to enhance it and to reach agreement on issues that have been raised in the committee report. That has lain behind all the approaches that I have taken to amendments today, as I hope will become clear.
I hope that, at the end of stage 2, we can have a clear agreement on the bill and—irrespective of whether people want to support or oppose it—it is clear that we have sorted out the issues that have been raised at stage 1.
I still believe that this bill offers a different approach to arranging referendums, and elements of it will survive this process. It provides a framework on to which the specific arrangements for referenda would be bolted, which is different from the PPERA approach.
Some committee members prefer the PPERA approach, so I am trying to find a way to ensure that the objections that were raised at stage 1, in evidence and by the committee, can be addressed. That is the background to where I find myself this morning.
The committee heard evidence on whether referendums should be triggered by primary or secondary legislation and on the circumstances under which those approaches would be appropriate. Your stage 1 report recommended
“that the Bill be amended so that referendums on constitutional issues must require primary legislation and that all other referendums will ordinarily require primary legislation.”
It further recommended that, if the Government wished
“to identify specific criteria for other referendums”,
we should provide for that.
As I set out in the stage 1 debate, I have accepted the argument that most referendums should be triggered by primary legislation. I have gone on to consider whether there are circumstances in which a referendum could be provided for by secondary legislation, subject to some form of super-affirmative procedure. I provided evidence to the committee when I spoke to and was questioned by it on these matters. Those circumstances apply in New Zealand, for example. Having taken account of the evidence and of the view of the committee, however, I have come to the conclusion that it would be best not to stand upon that issue, and to find a way to address the objections of the committee.
Adam Tomkins has lodged amendment 1, which would produce the effect of ensuring that all referendums are undertaken by primary legislation. I intended to lodge my own amendment to make the same change, but I was slightly tardy in that matter, so I have put my name to Mr Tomkins’s amendment, I support it and I would encourage the committee to support it.
Mr Tomkins has indicated that amendments 76 and 77 are alternatives to that approach. As I have accepted amendment 1, which is a better approach, I do not think that there is any need to proceed with amendments 76 and 77, and I am grateful to Mr Tomkins for having made that clear in what he has said. Those two amendments do not address the recommendation of the Delegated Powers and Law Reform Committee that the procedure for secondary legislation should be adjusted, so I think that we should simply park those and accept that amendment 1 represents the right way to do things.
I have lodged consequential amendments 23, 29, 42, 49 and 61, which make the necessary consequential adjustments to the bill to accommodate the changes to section 1. Those amendments would essentially provide the full job, if added to section 1.
Mr Tomkins referred to amendment 78 as a change to section 3 as a consequence of amendment 1. I support that amendment and encourage committee members to do so. In addition, Mr Tomkins lodged amendment 2 to make changes to section 2, removing the power to amend enactments. I have been more radical than Mr Tomkins in this matter: amendment 3 in my name would remove section 2 altogether. If section 1 provides for a bill in all cases, any necessary adjustments to the provisions in the framework could be made in a subsequent bill, as is common. That is a more straightforward approach than would apply under section 2.
Amendment 18 removes what would be a superfluous reference to section 2 if amendment 3 is accepted.
Patrick Harvie (Glasgow) (Green)
We have debated the question of whether specific legislation should always be required for referendums in the future, and I was willing, with an open mind, to allow the cabinet secretary to come back to us if he wanted to set out criteria that would allow for secondary legislation to be adequate. I was never really convinced that the need was there.
It seems to me that we could have a referendum on an issue that was so big that it transcended the parliamentary process, or on so contentious an issue that it would not be appropriate for Parliament to deal with it. It has always struck me as difficult to envisage a situation where an issue would meet those tests and yet be so simple that it did not require the detailed scrutiny that full legislation would offer.
I am glad that a compromise or agreement has been reached and that the cabinet secretary has agreed that the change can be made. Even if that was not the case, I would not be agreeing to amendments 76 or 77 from Adam Tomkins, if they were moved. If a minor matter was constitutional, I would not see that as being particularly key to the test of whether primary legislation was necessary.
As for moral issues, as we have discussed at the committee previously, I do not see it as being easily possible to have a clear definition of what constitutes a “moral issue”. All too often in politics, we regard things as moral issues when they affect marginalised people, rather than examining the moral content of the arguments.
Women’s reproductive rights are often seen as moral issues; men’s reproductive rights never are. Family law for people in same-sex relationships is often seen as a moral issue; family law for people in mixed-sex relationships never is. I will not agree to amendment 77 on a point of principle; legislation that would separate out what are seen as moral issues in politics from what are not seen as moral issues would be a fundamental mistake.
09:15Adam Tomkins
I welcome the cabinet secretary’s support for amendment 1. In light of that, and in the expectation that the committee will vote for amendment 1, I will seek to withdraw amendment 76.
Amendment 76, by agreement, withdrawn.
Amendment 77 not moved.
Amendment 1 moved—[Adam Tomkins]—and agreed to.
Section 1, as amended, agreed to.
Section 2—Application of this Act
Amendment 2 not moved.
Amendment 3 moved—[Michael Russell]—and agreed to.
Section 3—Referendum questions
Amendment 78 moved—[Adam Tomkins]—and agreed to.
The Convener
Amendment 79, in the name of Adam Tomkins, is grouped with amendments 90 to 92.
Adam Tomkins
The second fairly significant area of contention that is generated by the bill is to do with the Electoral Commission’s role in testing the intelligibility of questions, in particular the provision in section 3(7), which bypasses that function of the Electoral Commission for what are, in essence, repeat referendums.
The committee took strong evidence on the matter at stage 1, including from the Electoral Commission, which said:
“The Commission firmly recommends that it must be required to provide views and advice to the Scottish Parliament on the wording of any referendum question ... regardless of whether we have previously published our views on the proposed wording.”
I do not think that anyone apart from the cabinet secretary demurred from that evidence from the Electoral Commission. When the committee reached its conclusions on the matter, we unanimously recommended
“that the Cabinet Secretary recognises the weight of evidence ... in favour of the Electoral Commission testing a previously used referendum question and must come to an agreement, based on this evidence, with the Electoral Commission, prior to Stage 2.”
It is unfortunate that the evidence that is before us for stage 2 indicates that no such agreement has been reached. The cabinet secretary wrote to the convener last week about the matter and said only that the Electoral Commission “is aware of” the amendments in his name in this group; he did not say that the Electoral Commission had agreed to them. Indeed, the Electoral Commission said, in its briefing for stage 2:
“The Electoral Commission’s primary concern is that Parliament is able to access the Commission’s independent advice on the intelligibility of a proposed referendum question at any point it requests it, regardless of whether a question has been asked within that parliamentary session.”
That is the Electoral Commission’s view; it is as strong and unambiguous as it was at stage 1.
It seems to me that the committee has three options available to it at stage 2. The first is not to amend the relevant provisions in section 3 and for those to go on to stage 3 unamended, so that the Electoral Commission will effectively be bypassed with regard to any referendum question that has previously been used. That is what will happen if we do not amend those provisions today.
The second option is to accept the cabinet secretary’s amendments, which do not have—at least, we have not been told that they have—the agreement of the Electoral Commission. The cabinet secretary is shaking his head. I am happy to take an intervention from him.
Michael Russell
On page 2, the Electoral Commission’s briefing says:
“The Commission had a constructive meeting with the Cabinet Secretary to discuss Amendments 90, 91 and 92 relating to the Commission’s role in any question assessment. We are continuing to discuss the finer detail with officials to ensure that the final legislation reflects the principle outlined above.”
I do not think that that is anything other than an accurate assessment of where we are. It does not indicate a rejection of my amendments, which is what you are implying.
Adam Tomkins
I welcome the fact that there has clearly been constructive engagement between your office and the Electoral Commission. I wish it were otherwise, but unfortunately the evidence that we have in front of us today does not allow us to reach the conclusion that that constructive engagement, welcome as it has been, has led to an agreement between you and the Electoral Commission, which is what the committee unanimously called for in our stage 1 report. We unanimously said that there must be “an agreement” between the Government and the Electoral Commission about the Electoral Commission’s role with regard to the testing of referendum questions, where those questions have previously been used. We have no evidence that there is such an agreement. All that we have been told is that the Electoral Commission is “aware”—that is the word that you used in your letter to the convener last week—of your view.
I repeat what the Electoral Commission said, which is that its
“primary concern is that Parliament is able to access the Commission’s independent advice on the intelligibility of a proposed referendum question at any point it requests it, regardless of whether a question has been asked within that parliamentary session.”
The amendments in this group in the name of the cabinet secretary do not give effect to that concern. They do not give effect to the strong, unambiguous and clear view of the Electoral Commission that any referendum question must be tested for its intelligibility by the Electoral Commission, irrespective of whether that referendum question has been used before.
The only amendment in the group that gives effect to the force of the Electoral Commission’s evidence at stage 1 and now, and to the committee’s unanimous recommendation in our stage 1 report, is my amendment 79. Amendment 79 would clarify that, for the avoidance of doubt, the Electoral Commission’s statutory functions as an independent scrutineer of the intelligibility of referendum questions must apply even if a referendum question has already been used. The amendment gives effect to the overwhelming force of the evidence that we received at stage 1, and to the views of the Electoral Commission at stages 1 and 2. The issue can always be revisited at stage 3, but my amendment is the only course available to the committee today that gives effect to our unanimous recommendation at paragraph 72 of our stage 1 report.
For that reason, I urge members to support amendment 79 and to reject amendments 90 to 92 in the name of the cabinet secretary. As I said, I welcome the constructive engagement between Mr Russell’s office and the Electoral Commission, but I regret the fact that that engagement has not yet led to an agreement between the Government and the Electoral Commission about the issue.
I move amendment 79.
Michael Russell
We have heard from Adam Tomkins about why he believes that my amendments should be rejected and his amendment should be accepted. I have the opposite point of view, for which I will make the case.
Amendment 79 would make an inelegant change to section 3(7) to prevent any reuse of already-tested referendum questions. That is illogical and impractical, and amendment 79 is a curious way to achieve the aims that Adam Tomkins set out. Even in drafting terms, amendment 79 does not fulfil his objectives.
Question testing has been at the heart of the debate on the bill. I have heard the evidence that has been presented on the subject and the arguments that have been put forward by this committee and the Delegated Powers and Law Reform Committee. However, there is other evidence, which I have brought to the committee, not least of which is the absolutely clear evidence that exists in the poll by Progress Scotland, which shows how well understood the question is, and the fact that the question has been used so regularly. There is a strong case for saying that a question should have a shelf life, which should be determined at least in part by the way in which it continues to be used.
The committee recommended in its stage 1 report that I consider the evidence and come to an agreement with the Electoral Commission. I have taken that very seriously. I have met and spoken to the commission, and there have been frequent debates and discussions between officials and the commission. I met the commission last week and wrote to the committee to provide an update on progress on the matter. We continue to have constructive discussions, and amendments 90 to 92 are not abstract in that regard; rather, they are concrete examples of a discussion that has moved far along the line.
Taken together, my amendments would mean that a referendum question on which the Electoral Commission had previously reported would have a limited life. Indeed, in the case of the question that was cast in 2014, it would have already expired. A decision about whether a question could be reused would be for the Parliament to make and would require the input of the Electoral Commission. That would mean that a question would be available for reuse and, although the matter would be initiated by the Scottish ministers, it would be decided by the Parliament. That is the right way to move forward.
Before lodging any motion to reuse a question, ministers would have to consult the Electoral Commission. At the same time as lodging the motion, we would have to give details of our consultation with the Electoral Commission and set out why the commission thought that the extended validity period should or should not apply. If the Parliament refused to agree to the question, that would be the end of the matter.
Adam Tomkins
I am grateful to the minister for the clarity of his remarks.
It might well be that there are some things about referendums that we do not yet do well in the United Kingdom. However, one of the things that we do well is the three-way relationship between ministers, the Electoral Commission and the Parliament that legislates to authorise or trigger a particular referendum.
The roles of each are clear and distinct. It is the role of ministers to propose referendum questions. It is the role of the independent statutory Electoral Commission to test the intelligibility of a proposed referendum question to ensure that the interests of voters are paramount and there is no inadvertent confusion in the proposed question. The commission’s function is to represent and put first the interests of voters. It is the function of Parliament—whether that is the UK Parliament or, under the bill, this Parliament—to legislate accordingly.
That is all that I am asking for. The cabinet secretary’s proposal is very close to that, but it is not quite that. What is the cabinet secretary’s reason for wanting to pull back from that clearly established and well-functioning three-way relationship?
Michael Russell
I will disagree with your definition, using the words of the Electoral Commission. When giving evidence to the committee at stage 1, the Electoral Commission made it clear that it saw its role as advising rather than binding Government. It said that it was
“reluctant to step into a space that is for members, for Parliament and for political viewpoints.”—[Official Report, Finance and Constitution Committee, 18 September 2019; c 43.]
I am proposing exactly that: that the final decision will lie with the members of the Parliament. The Electoral Commission will advise, and its view will be heard.
09:30The commission has not rejected that position. There is on-going discussion, as the commission has indicated to the committee. It has said that it is discussing
“the finer detail with officials to ensure that the final legislation reflects the principle outlined above.”
Therefore, the discussion will continue and it may well bear fruit at stage 3. To refuse to accept that progress actually goes against what the Electoral Commission is saying about its role. In my view, the proposal exactly reflects that role, because it would bring in the commission to advise but give the final decision to members, which is exactly how it should be.
I will conclude, as the convener is looking anxious about the time. I believe that amendments 90 to 92 meet exactly the requirements of the committee and that they should be accepted—
Adam Tomkins
On a point of information, convener.
The Convener
You will have an opportunity to make the point when you wind up.
Michael Russell
As I said, I believe that the amendments meet exactly the requirements of the committee. I am asking the committee to support the amendments with the proviso that, if there is further change following the discussions with the Electoral Commission, I am happy to come back to the issue at stage 3. The commission says that the discussion has not concluded, so I am happy to come back at stage 3 once the discussion has concluded. The amendments are a major concession from the Scottish Government and I think that they should be recognised as such.
John Mason (Glasgow Shettleston) (SNP)
I disagree with Adam Tomkins’s comments about there being only one course available to the committee. That is obviously a political statement, and the reality is that several courses are open to us.
We said in our stage 1 report that the cabinet secretary
“must come to an agreement ... prior to Stage 2.”
It is disappointing that that has not happened—I accept that the Government and the commission have moved a considerable way in that direction, but they have not quite got to a conclusion. How do we react to that? We have at least a couple of choices as to which amendments we accept, so I fundamentally do not accept the argument that only one course that is consistent with our report is available to the committee.
We do not want the Electoral Commission to be able to dictate to Parliament—the word “bind” was used. That would be going rather too far in respecting the commission’s position.
Adam Tomkins
Will the member take an intervention on that point?
John Mason
Yes.
Adam Tomkins
There is no amendment on the table that would allow the Electoral Commission to bind Parliament. The Electoral Commission’s role under PPERA is to independently test the intelligibility of referendum questions, and that would be its role under my amendment 79. It will then be for the Parliament to decide whether to accept or reject the Electoral Commission’s advice. The idea that the Electoral Commission would be able to bind Parliament is not accurate.
John Mason
That is exactly my point—the Electoral Commission should not be able to bind Parliament, but the suggestion with amendment 79 is, almost, that we try to get to a position where it would be able to do so.
Adam Tomkins
No.
John Mason
Well, that appears to be the case.
Amendments 90 to 92 would put a time limit on how often a referendum question has to be assessed, which is a reasonable compromise. It is a fairly subjective area and is not black and white; we are talking about opinion and judgment. On that basis, I am positive about the compromise of having the time limits, with the proviso that, following the Electoral Commission’s discussion of the finer details with officials, the provision could be further amended at stage 3.
Alex Rowley (Mid Scotland and Fife) (Lab)
The cabinet secretary has failed to reach agreement with the Electoral Commission. I still do not know why he is so insistent on this point and has not been able to find a way of bringing people together—he has clearly failed to do that. Therefore, I will support amendment 79, in the name of Adam Tomkins.
Let us see whether we can get agreement by stage 3. It is not about compromise; it is about getting the best way forward that is built on best practice, and the evidence is overwhelmingly against what the cabinet secretary and the Government propose. Members can use their votes to force through the proposal, but that will not be a good start on an agenda that the cabinet secretary claims is about trying to bring people together. I will certainly vote against the minister’s amendments 90 to 92 and support Adam Tomkins’s amendment 79.
Patrick Harvie
I am sorry that the tone of the debate so far has been needlessly confrontational. Adam Tomkins said that what the cabinet secretary is offering is very nearly but not quite what Mr Tomkins believes is necessary, and the cabinet secretary said that his amendments represent substantial progress but not the last word and that the matter could be returned to at stage 3. I think that there is perhaps a bit of performative oppositionalism here and that, actually, people are moving together towards something that should be recognised as acceptable.
The two big and contentious issues are the use of primary or secondary legislation and question testing, but the discussion about question testing has changed because of the amendments that we have just agreed to on primary and secondary legislation. Any referendum that takes place within the framework of the bill will be subject to primary legislation that is amendable in Parliament, so Parliament will be entirely capable of saying, if it chooses to do so, that the Government of the day is trying to pull a fast one and get around question testing. In such a case, Parliament would be able to amend the relevant referendum bill to ensure that question testing happens.
The Electoral Commission’s primary concern is
“that Parliament is able to access the Commission’s independent advice on the intelligibility of a proposed referendum question at any point it requests it”.
It seems to me that, regardless of the amendments in the current group, we are already in that position because of the amendments that we have agreed to on the use of primary legislation for future referendums. The cabinet secretary’s amendments 90 to 92 go further in providing Parliament with the additional safeguard or reassurance that we and subsequent Parliaments will be able to make the relevant decisions at the time when we or they wish.
If there is scope for the cabinet secretary to come back and discuss further refinements at stage 3, that will be positive as well, but I think that we are much closer on the matter than some people seem to be presenting.
Murdo Fraser (Mid Scotland and Fife) (Con)
When the committee produced its stage 1 report, it unanimously resolved that the Scottish Government and the Electoral Commission must come to an agreement on the testing of previously used questions. Although I recognise that there has been progress, movement and discussions, it is clear from what the cabinet secretary has said that, at this moment, an agreement has not been reached. No doubt, he will correct me if that is an incorrect interpretation, but I think that that is where we are. Discussions have happened and progress has been made, but the Scottish Government and the Electoral Commission have not actually reached an agreement, so the committee’s strong and unanimous recommendation at stage 1 has not been met.
I therefore think that the kindest thing that we can say about amendments 90 to 92 is that they are premature. They put the cart before the horse, because we do not at this point have an agreement with the Electoral Commission. For the cabinet secretary to have lodged his amendments, which state what he wants the position to be, at a time when there is no agreement with the Electoral Commission is to push the boat out too far.
There is a simple way of dealing with the matter. There is still an opportunity, because there will be another round of amendments at stage 3. In a spirit of openness and compromise, I recommend to the cabinet secretary that he does not press his amendments 90 to 92. As and when agreement is reached with the Electoral Commission, if that occurs, it and the cabinet secretary will tell us what the agreement is, and amendments can be lodged at stage 3 to seek to implement the agreement.
The cabinet secretary’s amendments 90 to 92 simply represent the cabinet secretary’s view on the way forward. For them to be agreed to at a time when no agreement has been reached would be inappropriate and would not meet the spirit or, indeed, the letter of what the committee resolved at stage 1.
Angela Constance (Almond Valley) (SNP)
Later in stage 2, when we come to group 17, we will debate the pros and cons of placing a duty on ministers to follow the advice of the Electoral Commission.
On the amendments that are before us now, there are two important factors. One is how we move matters forward; another is how we protect the role of the Parliament. The tenor of the earlier debate, at least, confirms my fears that amendment 79 is about taking a step backward as opposed to forward. Amendments 90 to 92 represent a serious attempt by the cabinet secretary to take matters forward, in line with the committee’s aspirations as set out in our stage 1 report.
Of course, there continues to be the opportunity for dialogue in advance of stage 3. I think that the committee can take heart from the correspondence from the Electoral Commission, in which the commission said:
“We are continuing to discuss the finer detail with officials to ensure that the final legislation reflects the principle outlined above.”
Amendments 90 to 92 provide substantial reassurance. For example, amendment 92 provides that
“the Scottish Ministers must consult the Electoral Commission.”
The bottom line for me is that the matter should ultimately rest with our Parliament, not with ministers or unelected bodies, as the Electoral Commission itself acknowledges.
Gordon MacDonald (Edinburgh Pentlands) (SNP)
A key policy in the Labour Party manifesto for the forthcoming election is the holding of a referendum on the Brexit deal within six months. Given the timescales that are involved in that regard, and given that we are always told that the United Kingdom Parliament is sovereign, does not that suggest that, as the cabinet secretary said, it will be for members of the UK Parliament to decide whether a test will be involved and whether the question that was used in 2016 will be used again? Will an uneven playing field be created in relation to how questions are used in referenda across the UK?
Alexander Burnett (Aberdeenshire West) (Con)
I heard what Patrick Harvie said. Given the amendment to section 1, the Parliament could add a role for the Electoral Commission in analysing the question. Does he agree that the reverse could occur and the Electoral Commission’s role could be removed under section 1, if that was the wish? Would not the de facto inclusion of the Electoral Commission be more satisfactory?
Patrick Harvie
It is clear to all of us that legislation can always be amended. This Parliament cannot pass legislation that is unamendable by a subsequent Parliament. If the bill is passed and becomes an act, a future bill that is introduced to set up a referendum could amend the act in any direction.
I hope that we never have a Parliament that seeks to abolish or unreasonably restrict the role of impartial bodies. During the stage 1 debate, I publicly urged the Government to be a bit more relaxed about the role of the Electoral Commission. However, it is a simple matter of fact that any subsequent bill could amend the bill that we are discussing today.
Alexander Burnett
I agree with you; I just wonder why you do not agree that including the Electoral Commission would be a better starting point.
Adam Tomkins
I thank all members and the cabinet secretary for their contributions to the debate on this group of amendments. No group is unimportant, but this group is on one of the most important issues that the bill raises.
Referendums decide things. Referendums decide big things—things that matter and change the entire nation. Surely, we all agree that the ground rules for setting up referendums must be unimpeachable. The First Minister referred to the 2014 referendum as the gold standard, and the Edinburgh agreement, which the First Minister signed, was an important part of that. There is a lingering suspicion that seeking to bypass or minimise the independent statutory function of the Electoral Commission is rigging the rules of a future referendum.
09:45As I said in my intervention, there is a very clear three-way relationship, which has been mischaracterised by Mr Mason and Ms Constance today, which is that ministers propose referendum questions, the Electoral Commission independently tests the intelligibility of those questions and Parliament then decides. That should happen for every referendum in the United Kingdom or in any part of the United Kingdom, and that would be the effect of amendment 79. There is nothing in amendment 79 that seeks to bind this or any future Parliament to accepting the recommendations of the Electoral Commission. The Electoral Commission advises. My point, cabinet secretary, is that the Electoral Commission should be able to give that advice with regard to each and every referendum that we hold, irrespective of whether we have previously held a referendum on that question.
Michael Russell
I want to take up Mr Fraser’s point with Mr Tomkins. If my amendments are—as Mr Fraser says—premature, is amendment 79 not also premature? Mr Tomkins’s argument is that I have not reached agreement, and my argument is that I have made progress on reaching agreement, which is reflected in my amendment. Amendment 79 does not reflect any progress at all having been made. Indeed, it is contrary to what the Electoral Commission’s report says about continuing to discuss the finer detail. Does Mr Tomkins accept that his amendment 79 is premature and should be withdrawn, following the argument made by Mr Fraser?
Adam Tomkins
No, I do not. I am coming to that point.
The evidence that we received from the Electoral Commission at stage 1 was clear and unambiguous: the Electoral Commission’s role as an independent scrutineer of the intelligibility of referendum questions must be protected and employed for every referendum that is held in the United Kingdom or in any part of the United Kingdom. That is the force of my amendment: amendment 79 would require that the Electoral Commission’s role in respect of the intelligibility of questions and question testing be maintained for every referendum. That is the advice and evidence that we were given by the Electoral Commission. Except for the cabinet secretary, no one gave evidence to the committee that contradicted or countermanded that advice at all.
Amendment 79 is not premature; it seeks to give full effect to the full weight of the evidence that we received at stage 1. In our stage 1 report, we unanimously concluded, on the basis of all of that evidence, that the cabinet secretary must come to an agreement with the Electoral Commission prior to stage 2—not prior to royal assent or stage 3. Notwithstanding the fact that we all welcome the constructive engagement that the cabinet secretary has had with the Electoral Commission, that agreement has not been reached.
I am afraid that amendments 90 to 92, in the name of Mr Russell, are both inappropriate and premature. The only course available to the committee today that gives effect to what the committee unanimously recommended at stage 1 is to accept amendment 79 and reject the other amendments in the group.
John Mason
Is the member arguing that time is not a factor at all and that it does not matter whether a question was asked a day ago, a year ago, 10 years ago or 100 years ago?
Adam Tomkins
Yes, I am, because I think it is preposterous to imagine that we would hold a referendum on a question the day after we had held a referendum on the same question. No matter how important the issues are, referendums will not be held on them according to that sort of timescale. That is a fanciful and rather ludicrous example.
Referendums are held in the United Kingdom on important matters of constitutional change. They might be held on other issues, but, as Patrick Harvie said, it is difficult to conceive of an issue that is important enough to be decided by referendum that is also somehow not important.
It is elementary that, when we hold referendums, they should be held to the highest possible standard. A key element of that gold standard is that ministers propose referendum questions, the Electoral Commission independently tests the intelligibility of those questions—putting the interests of voters first—and Parliament then decides whether to accept or reject the independent advice of the Electoral Commission. All that my amendment 79 seeks to do is to ensure that any future referendum on any subject—whether that is Scottish independence or anything else—under the authority of the bill meets that gold standard.
Amendments 90 to 92, in the name of the cabinet secretary, do not reach that gold standard—they fall short of it. For that reason, the amendments should be rejected.
The Convener
The question is, that amendment 79 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Bibby, Neil (West Scotland) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Tomkins, Adam (Glasgow) (Con)
Against
Arthur, Tom (Renfrewshire South) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Harvie, Patrick (Glasgow) (Green)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
The Convener
The result of the division is: For 5, Against 6, Abstentions 0.
Amendment 79 disagreed to.
Amendment 90 moved—[Michael Russell].
The Convener
The question is, that amendment 90 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Arthur, Tom (Renfrewshire South) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Harvie, Patrick (Glasgow) (Green)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Against
Bibby, Neil (West Scotland) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Tomkins, Adam (Glasgow) (Con)
The Convener
The result of the division is: For 6, Against 5, Abstentions 0.
Amendment 90 agreed to.
Amendment 91 moved—[Michael Russell].
The Convener
The question is, that amendment 91 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Arthur, Tom (Renfrewshire South) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Harvie, Patrick (Glasgow) (Green)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Against
Bibby, Neil (West Scotland) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Tomkins, Adam (Glasgow) (Con)
The Convener
The result of the division is: For 6, Against 5, Abstentions 0.
Amendment 91 agreed to.
Amendment 92 moved—[Michael Russell].
The Convener
The question is, that amendment 92 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Arthur, Tom (Renfrewshire South) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Harvie, Patrick (Glasgow) (Green)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Against
Bibby, Neil (West Scotland) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Tomkins, Adam (Glasgow) (Con)
The Convener
The result of the division is: For 6, Against 5, Abstentions 0.
Amendment 92 agreed to.
The Convener
The question is, that section 3, as amended, be agreed to. Are we agreed?
Members: No.
The Convener
Conservative members’ opposition is noted.
Section 3, as amended, agreed to.
After section 3
The Convener
Amendment 4, in the name of Adam Tomkins, is grouped with amendments 4A and 75.
Adam Tomkins
On page 11 of the Electoral Commission’s September 2016 report on the 2016 EU referendum, recommendation 3 states:
“the starting assumption for Governments and legislatures should be that referendums are”—
I am sorry, convener, but I am looking at the wrong section. I should be speaking to amendment 4 on the minimum regulated period.
The Convener
That is correct. It is okay—take your time.
Adam Tomkins
Right, let me start that again.
I do not think that the cabinet secretary and I are going to disagree on this issue because the force of my amendment 4 and the force of his amendment 75 are broadly similar and are two different means of achieving the same ends. The bill should be amended in one way or another to ensure that the minimum regulated period for any referendum that is held under the authority of the legislation is 10 weeks.
As introduced, the bill had no minimum regulated period. The committee took evidence that there should be a minimum period and that best practice appeared to be that a minimum of 10 weeks should be adopted. I am happy to be corrected but, as I understand it, the force of amendment 75 and the force of amendment 4 are two different legislative means of seeking the same result. I am not going to die in a ditch over whether the means in amendment 4 or the means in amendment 75 should be adopted. Amendment 75, which simply defines a referendum period in the schedule of definitions is probably more elegant and neater than the alternative, so I would be happy not to press amendment 4 if the cabinet secretary wishes to move amendment 75, unless he thinks that there is some material difference between the amendments that I have overlooked in my sleepiness.
Jackie Baillie has lodged an amendment to my amendment that would make the minimum regulated period 12 weeks rather than 10. The selection of any period of time is, I suppose, arbitrary, but my question for Jackie Baillie is why it should be 12 weeks when the evidence that the committee took was that 10 weeks is the minimum that is required. There was no discussion of a 12-week period during our evidence taking but there was quite a lot of discussion of a 10-week period. There are recent unfortunate exceptions to this but, by and large, this committee seeks to follow the evidence, and the evidence is that the minimum regulated period should be 10 weeks, so I would stick with that and not extend to 12 weeks. Again, that is not a ditch in which I propose to die.
I move amendment 4.
Jackie Baillie (Dumbarton) (Lab)
Let me add to the outbreak of consensus, because there is broad support for the principle that the length of the regulated referendum period should be set out in the bill. I am, however, conscious that, if Adam Tomkins withdraws amendment 4, amendment 4A has nothing on which to hook itself, so I am slightly disappointed that he is prepared to cave for the cabinet secretary’s form of words when his is clearly far superior.
That said, I was challenged to say why I am seeking a period of 12 weeks. In previous debates on amendments, Adam Tomkins has said that these are momentous decisions that could be taken in future referenda. Notwithstanding the evidence that the committee took from expert witnesses about what goes on elsewhere, we have now had experience of two referenda in a short period of time. Because of the significance of the decisions, a minimum period at 10 weeks is perhaps slightly too short a time. I would rather err on the side of caution and give the maximum possible time for such a debate, as well as allowing for the normal functioning of local government and the Scottish Government.
John Mason
Will the member take an intervention?
Jackie Baillie
I am just about to finish, but please go ahead, Mr Mason.
John Mason
I am still not clear why it should be 12 weeks rather than, say, 14, 16 or 20.
Jackie Baillie
I think that 12 weeks is better than 10. I have said that I base that on the experience that we have had of two referenda. We need to allow a minimum period with sufficient time for the democratic process to be thorough, so 10 weeks is just a bit too short.
I move amendment 4A.
Michael Russell
I simply confirm that I believe that 10 weeks is correct. The committee welcomed the Scottish Government’s openness to considering a minimum regulated period when it reported. The 10-week period was the view of stakeholders, and it seemed to be an appropriate period. Therefore, I think that 10 is the right number. There is no great harm in 12—and I think that Jackie Baillie has lodged an amendment that would provide for a 14-week period in other circumstances; the number keeps growing. Stakeholder opinion on 10 weeks was unanimous, as far as I recall.
It would be for the Parliament to decide on a longer or shorter referendum period for a particular referendum if referendums were being held under primary legislation. However, the framework position—and I go back to the point that this is a framework bill—would be what is supported.
10:00As for the elegance or otherwise of the solutions, I simply argue that amendment 75 will have the same practical effect as amendment 4 but fits with the nature of other amendments, including those on removal of powers in sections 1 and 2, which we have considered. Amendment 75 fits with how the bill is drafted and cross-refers. In the circumstances, I ask Adam Tomkins not to press amendment 4—that will have an unfortunate but necessary effect on amendment 4A. Amendment 75 will produce a result.
Patrick Harvie
I am pleased that there is agreement on putting the figure in the bill and I agree that amendment 75 is the neater way of doing it.
In deciding what the figure should be, there is an important balance to strike. There should be a minimum period, to ensure that the referendum is held in a fair, legitimate and trustworthy way, but there is a danger of extending the period too much. Some referendums are time sensitive. I am pleased that so far in this country we have not gone down the route that some jurisdictions have taken and held referendums on budgetary matters, such as tax rates—some countries have done that; I hope that we do not do so. However, if a Government was elected that considered it legitimate to hold a referendum on a national tax rate before a budget came into effect, there would be a clear time limit by which the referendum would have to be achieved. Extending the timescale would therefore be a risk in relation to some referendums that we might want to hold.
I recognise Jackie Baillie’s point about comparing the two, big, controversial and highly contentious referendums that happened in recent years, but I think that the contrast between them is not to do with the short regulated period. In the case of the 2014 referendum, we had, in effect, three years of deep political debate, because everyone knew that the referendum was coming. The shallowness of the 2016 referendum was not about the short number of weeks in the run-up to the referendum day but about the conduct of the political campaigns and the absence of consequences similar to the consequences for people who are dishonest in election campaigns—we will come to that issue when we consider a later group of amendments.
I see no case for a 12-week period and I am happy that agreement has been reached on putting a 10-week period, for which we heard clear evidence, into the bill.
Adam Tomkins
I have nothing further to say. The Electoral Commission is pushing for 10 weeks, not 12, and has welcomed amendment 75, in the cabinet secretary’s name, which specifies a minimum 10-week referendum period.
I am happy to support amendment 75. The cabinet secretary has twice suggested that my impeccable drafting was inelegant—
Michael Russell
And I’m not finished yet.
Adam Tomkins
That hurts, but the cabinet secretary can apologise later. I think that amendment 75 provides an elegant solution and I am happy to support it.
Jackie Baillie
Given the debate, I am happy not to press amendment 4A, albeit that it was elegantly written.
Amendments 4A and 4, by agreement, withdrawn.
The Convener
Amendment 93 is in a group on its own.
James Kelly (Glasgow) (Lab)
I am pleased to return to the committee that I recently served on to speak to my amendments. Amendment 93 seeks to ensure that for a result to be valid in a referendum, there must have been a 50 per cent turnout. In considering the amendment, it is important to look at the background to the Referendums (Scotland) Bill. When the bill was published, the Government was enthusiastic in pointing out that the bill related not just to independence referenda but to referenda in general. Amendment 93 should therefore not be seen, as some have tried to misrepresent it, as an attempt to meddle in a future independence referendum. Clearly, in any future independence referendum turnout would exceed 50 per cent, and it is disingenuous to suggest otherwise.
Referendums on moral issues have been referred to, while Patrick Harvie just talked about a referendum on a national tax rate ahead of a budget. In either case, it would be important that the referendum result was not contested. If turnout was less than 50 per cent, the result would lack credibility and would be contested. Amendment 93 seeks to avoid that and to ensure that, for any result to be valid, the turnout must be 50 per cent.
Amendment 93 should be considered alongside other amendments, which I will move later, on increasing the length of polling time available, on the possibility of Saturday voting and on increasing the information that is available to voters. All those amendments seek to push up voter turnout and thereby lend democratic credibility to the result.
Any referendum outcome must be seen as the settled will of the Scottish people. That comes into question if less than half the population voted. I urge members to support amendment 93, as it adds credibility and validity to the outcome of any future referendum.
I move amendment 93.
Patrick Harvie
Like others, I am sure, I welcome James Kelly back to the committee.
I hope that we would all want turnout to be high, whether in referendums or elections. I think that we would all want a politically engaged population who see voting as something important to do. At the same time, though, I fundamentally respect people’s right to abstain in a referendum—to say, “A plague on all your houses,” whether it is political parties or campaign groups—and not have their vote counted. The effect of amendment 93 would be that abstentions are in effect counted as votes against change. The amendment is rather like the suggestions that have been made elsewhere for a two-thirds majority. It would give an in-built advantage to anyone arguing against political or social change in a referendum campaign, as against those in favour of change. On that basis, it would breach the principle that everybody’s vote should count for the same.
I commend James Kelly on one point, though, which is the courage that he has shown by coming to the committee and moving amendment 93, as someone who believes that a 50 per cent turnout is the gold standard of legitimacy but who was first elected to the Scottish Parliament on a 48.5 per cent turnout. That would pose me no problems, but I am sure that it is slightly embarrassing for James Kelly, so I am grateful for his efforts to overcome that.
Angela Constance
By lodging amendment 93, Mr Kelly has succeeded in triggering an entire nation back to 1979. It is like the ghost of Christmas past, I am afraid. Dr Alan Renwick told the committee:
“Turnout thresholds are clearly undesirable and a bad idea because they encourage people who are in danger of losing to suppress turnout in order to invalidate the vote.”
He went on to say:
“use of an electorate threshold was discredited by the 1979 experience, so you would be a brave politician to recommend introducing one in Scotland.”—[Official Report, Finance and Constitution Committee, 4 September 2019; c 27.]
I think that we can indeed agree that Mr Kelly is brave.
I stick to my previous publicly made comments on the issue. In the context of a referendum on Scotland’s constitutional future, I very much think that this is a wrecking amendment. It is a wolf in sheep’s clothing. It is anti-democratic for some of the reasons that Patrick Harvie has outlined, because it assumes that not voting equates to support for the status quo. I am vehemently opposed to the amendment.
Gordon MacDonald
This morning, we have discussed how referendums are always about important issues that tend to engage voters. If we look at the history of referenda throughout the UK—from the Northern Ireland border poll in 1973 and the European Union membership referendum in 1975 right up to the Scottish independence referendum in 2014 and the EU membership referendum in 2016—there has been no minimum turnout requirement.
I accept that, as Patrick Harvie and Angela Constance have said, such an approach discourages voter turnout. We have to remember that, in the devolution referendum in 1979, the dead were in effect recorded as voting no. We do not want to return to that situation.
Tom Arthur
I, too, oppose the amendment, for all the reasons that have been shared by colleagues. Principally, I oppose it because it incentivises a campaign to encourage people not to vote. In an age when our democratic institutions and values are under attack, we should not be seeking to encourage that.
Michael Russell
That previous point is an important one: a turnout threshold incentivises people not to vote. Not voting is seen as a political action, so it discourages participation. I find it inconsistent that Mr Kelly has made such a proposal, given that he has lodged amendments that encourage participation by increasing the polling hours.
The 1979 referendum did not follow the exact same procedure, but it raised a series of anomalies, including people who could not return to where they lived in order to vote because of ferry difficulties. I know that that was the case, because I lived in the Western Isles at the time. There were problems with people who had—sometimes by mistake—more than one address. A range of difficulties presented.
The committee has received no evidence at all to support the idea that any threshold other than a simple majority should be followed. Therefore, although amendment 93 is a worthy attempt, it is a misguided one. I ask Mr Kelly not to press amendment 93. If he does, I urge the committee to reject it.
James Kelly
I will press amendment 93. Ultimately, the test on the amendment is whether it would enhance the process of any future referendum. Again using Mr Harvie’s example again of a referendum on financial powers ahead of a budget, I put it to you that, if the turnout was below 50 per cent, it would be contested, and it would be difficult for the Government—
Adam Tomkins
Given what he has just said, why does Mr Kelly think that all three independent reports into the use of referendums that the committee has looked at have unanimously and strongly concluded against threshold or turnout requirements? The House of Lords Constitution Committee, the independent commission on referendums and the Venice commission have all recommended against seeking to rig the rules of referendums by fiddling with either turnout or threshold requirements. Given that overwhelming evidence, why does Mr Kelly alone seem to think that doing that would enhance rather than inhibit democracy?
James Kelly
It is not a question of rigging the rules; it is a question of ensuring that any outcome has democratic credibility.
As I was saying, if a budgetary proposal is taken to the country and fewer than half the people participate in that referendum, that result, when it is returned, will be contested; it will not be credible. Like other members, I want to ensure that there is voter participation, with turnouts in excess of 50 per cent, so that the outcomes of referendums are credible.
10:15I seem to have ruffled the feathers of some Scottish National Party members, given their comments about the 1979 referendum. I completely reject Angela Constance’s suggestion that amendment 93 is a wrecking amendment. If there were to be an independence referendum in future, surely no one disputes that turnout would be in excess of 50 per cent. Let us face it: people would turn out in droves to reject the proposition that we should enter into an arrangement whereby we would have a £12 billion deficit every year.
John Mason
Do you accept that, if one side was winning by 49 per cent to 40 per cent, there would be an incentive for the side that might lose not to vote, which would, in effect, give that side 40 per cent plus 11 per cent—that is, 51 per cent—and it would then win? The intention of getting more people to vote is a good one—that is great; we all accept that. However, in practice do you not accept that we could end up with an undemocratic result?
James Kelly
It is nonsense to suggest that people would go round saying, “Let’s not vote in this referendum.” We are all politicians who care keenly about the democratic process, as do a lot of people in the country. That is the spirit in which people would take part in campaigns.
Ultimately, I am seeking to ensure that the outcomes of referendums are credible. I ask members to support amendment 93.
The Convener
The question is, that amendment 93 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Bibby, Neil (West Scotland) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Against
Arthur, Tom (Renfrewshire South) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Harvie, Patrick (Glasgow) (Green)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Tomkins, Adam (Glasgow) (Con)
The Convener
The result of the division is: For 2, Against 9, Abstentions 0.
Amendment 93 disagreed to.
The Convener
Amendment 94, in the name of Neil Findlay, is grouped with amendment 95. I understand that Alex Rowley will speak to and move amendment 94.
Alex Rowley
Convener, Neil Findlay sends his apologies for being unable to attend the meeting.
Amendment 94 would create a category of referendum, the citizen initiative referendum, which could be initiated from below, in an attempt to bridge the democratic gap.
For many ordinary people, the Scottish Parliament has for much of its existence seemed cut off from the concerns of their daily lives. It is important that we address that. By complementing the on-going work of the petitions system, we can help to reverse the trend towards a little more than 45 per cent of the population exercising their democratic right.
The threshold for initiating a citizen initiative referendum would be 300,000 signatures. That is a substantial threshold, but we are unapologetic about that; any issue that leads to a referendum, with all the time and expense that that involves, must be important to a large number of Scottish people. Even if the 300,000-signatures threshold is not met, we expect there to be an increase in democratic participation as citizens come together to campaign on causes that matter to them. The Scottish Government has consistently said that it embraces such participation.
We appreciate that there might be concerns about such a novel proposal but we want to revitalise our democracy and bold steps are needed if we are to do so.
I move amendment 94.
Jackie Baillie
Amendment 95 builds on amendment 94, which sets out arrangements for a citizen initiative referendum—a novel approach, which is designed to bridge the democratic deficit. I have sought to provide an appropriate timescale for such a referendum, which is a minimum regulated period of 14 weeks.
On balance, I think that more time would be needed for such a referendum than would be needed for a Government-initiated referendum. There would need to be sufficient time for a proposition to be well understood and for proposals to be properly scrutinised and discussed. Hence my choice of 14 weeks.
Patrick Harvie
I am pleased that we have the opportunity to discuss amendment 94.
I certainly would not want to be thought of as being hostile to the idea of citizen initiative referendums. Greens have always argued that representative democracy is part of our democratic process and should be augmented and added to by participative and deliberative processes. For that reason, we championed participatory budgeting. We also championed a public petitions systems when Parliament was being established, and we urged councils around the country to adopt public petitions systems—I think that most have now done so. We are pleased that there is now an approach to the use of citizens assemblies at local and national level. The citizens assembly of Scotland is currently considering broad constitutional questions and later there will be a citizens assembly on climate.
All those things are innovations that I welcome. However, I suspect that we are not quite ready for amendment 94. I would very much welcome the view of the current citizens assembly on whether a citizens initiative should be able to trigger a referendum. It would be more appropriate to hear the views of citizens assembly participants on whether such an approach would be a positive innovation, in the context of participative and deliberative processes, than it would be for the committee to decide that now.
In the absence of clear evidence on the issue being taken at stage 1 of the bill, it would be premature for us to make a decision on it. However, I would very much welcome a debate on the question, whether at stage 3 or through the citizens assembly, if that body wants to consider a proposal along the lines that are set out in amendment 94.
On amendment 95, I am not convinced that there is a case for extending the minimum regulated period in the way that Jackie Baillie suggests, but it will not be relevant if the committee does not support amendment 94.
Adam Tomkins
I agree with quite a lot of what Patrick Harvie said. A missed opportunity in the bill, so far, has been that we have not thought carefully or deeply about the relationship between democracy by referendum, parliamentary democracy and other citizen initiatives, including citizens assemblies. It is unfortunate that the bill has not given us the opportunity to think through some of those issues a little more carefully and deeply.
Amendment 94 is bonkers. It is a really strange and extremely dangerous amendment, which is fantastically ill conceived. For example, it says:
“A referendum held under this section is advisory”,
as if other referendums might somehow be different, without explaining what “advisory” means. It also gets wholly wrong the role of the Electoral Commission, which we have debated this morning. It says:
“It is for the Electoral Commission to specify the wording of the question or questions in a referendum held under this section.”
We have already seen that that is not what the Electoral Commission is for; the Electoral Commission’s role is to give advice about the intelligibility of referendum questions, not to specify or bind.
The fundamental flaw in amendment 94 is that it would lock Scotland into an independence neverendum. It is unfortunate, but I am happy to concede that there will always be 300,000 people in Scotland who think that Scotland should be an independent country—although many more will take the correct view. [Laughter.] The proposed approach in amendment 94 would enable 300,000 cybernats—or 300,000 nationalist campaigners—to petition the Electoral Commission for an independence referendum, and the amendment provides that once that number of signatures has been obtained,
“a referendum is to be held.”
We would have a permanent independence referendum under amendment 94, which was moved by Alex Rowley but lodged in the name of Jeremy Corbyn’s left-hand man in Scotland, Neil Findlay, and which shows how weak the Labour Party is when it comes to protecting the union.
Amendment 94 is a Labour amendment that would lock Scotland into a permanent independence neverendum. For that reason, as well as its manifest inadequacies in the detail of its inelegant drafting, we will oppose it.
Michael Russell
I oppose amendment 94, but not for the reason that Mr Tomkins has just outlined. I am not an extremist in any sense; I do not veer between the extremes of wanting a perpetual referendum and the position of the acting leader of the Scottish Tories, Jackson Carlaw—I am not sure that he is acting the role very well—who apparently said this week that there should not be another referendum until 2054, when I will be 101. There will be seven Scottish Parliament elections between now and then. That is clearly a ludicrous proposition.
Adam Tomkins
I agree—it is too soon. [Laughter.]
Michael Russell
I hope that the Official Report has captured Mr Tomkins’s belief that a referendum in 2054 would be too soon. That says something about democracy.
I would not use the word “inelegant” to describe amendment 94. It has simply not been thought through—it is threadbare. It would allow any voter to initiate a referendum by starting a petition that goes on to collect 300,000 signatures. Why has the figure of 300,000 been chosen? The Scottish people are well known for their sense of humour. I note that Boaty McBoatface received 124,109 votes. With the low threshold that has been proposed, it is clear that the mechanism proposed by amendment 94 could be used for a variety of purposes.
The amendment lacks any detail on who would be entitled to add their signature to such a petition. Would that ability apply only to those who were over 16 or 18, or would people of any age have it? Would they have to be resident in Scotland, or could anyone in the world add their name to the petition?
On top of that, there is the issue of whether, given what the Electoral Commission is for, it would wish to take on the roles that are specified in amendment 94. No consideration is given to the matters of the accuracy of the signatures or the eligibility of people to sign such a petition. The amendment is completely threadbare and absolutely out of place.
Amendment 94 also fails to recognise that, if an individual citizen wants to use a petition to initiate a referendum, a route to do so already exists. I have some sympathy with Mr Harvie’s position—that route could be improved on. I am not absolutely against initiative referenda. People can petition the Scottish Parliament and, if they collect sufficient signatures, action can be, and is, taken. The petitions system allows individuals to directly affect Government policy. I cite as evidence of that Gillian Martin’s Seat Belts on School Transport (Scotland) Bill, which she introduced in February 2017 and which received royal assent in December of that year; it was directly related to the petitions process. There is a way for an individual to try to change Government policy through existing procedures. Can it be improved? Of course. Would amendment 94 improve it? Absolutely not.
If amendment 94 is a serious amendment, it should not have been lodged in the terms in which it has been lodged. On top of the practical defects that I have outlined, there is also the question of who would pay for such a referendum, how the Parliament would react and what the limits of the process would be. I agree that there should be a debate on the subject, but accepting amendment 94 is not the way to have that debate, and I urge the committee to reject it.
The Convener
I invite Alex Rowley to wind up on amendment 94.
Alex Rowley
Neil Findlay will be disappointed that he was not able to engage in today’s discussion. Amendment 94 is more of a probing amendment that was lodged in an attempt to widen the discussion on such matters.
If people knew that the Referendums (Scotland) Bill was going through Parliament, I am sure that many of them would think, “What on earth?”, because the referendums that we have had have caused utter chaos and divided our country. A wider discussion needs to take place about how we engage with people. There are politicians who believe that politics is for politicians, except when they want people’s votes.
Although Neil Findlay’s amendment 94 has been criticised, he has sought to raise the wider issue of how we build on democracy and stop people being turned off. The most common comment that I get on the doorsteps at the moment is, “We only see you when you want our votes.” The way that we do politics in this country is changing.
10:30The Scottish Government has felt the need to introduce a referendum framework bill.
I do not intend to press amendment 94, but Neil Findlay was right to flag up that we have to look at how we engage people and make politics more relevant to their lives.
Amendment 94, by agreement, withdrawn.
The Convener
Amendment 95, in the name of Jackie Baillie, was debated with amendment 94. Jackie Baillie to move or not move.
Jackie Baillie
Given that I have lost amendment 94, which was the hook, I will not move amendment 95, convener.
Amendment 95 not moved.
Sections 4 to 6 agreed to.
Schedule 1—Further provision about voting in the referendum
The Convener
Following the next group of amendments, I intend to have a short comfort break. Amendment 5, in the name of the cabinet secretary, is about referendums administration in general and is grouped with amendments 6 to 17, 19 to 22, 24 to 26, 43, 50, 64 and 65.
Michael Russell
This group has 24 technical amendments that were requested by the Electoral Commission and the wider electoral community. I do not believe that the items are controversial, but of course they need to be considered seriously.
The first sub-group relates to granting emergency proxies, and is covered by amendments 5 to 7. As introduced, the bill provides for voters to apply for emergency proxies when circumstances that arise after the deadline for usual absent vote applications mean that the voter cannot attend the polling station on the day of poll. That is to ensure that voters are not disadvantaged due to medical, employment or other situations beyond their control.
Electoral registration officers have suggested that the current rules do not make adequate provision for some medical emergencies. A voter who suffers a medical emergency near to the deadline for applying for absent votes may be undergoing treatment or otherwise incapacitated for a sufficient length of time that they cannot apply to be an absent voter before that deadline. Although voting is important, applying for a proxy vote might not be the first thing that someone would think of when coping with a serious medical event.
On that basis, I have lodged amendments that would give electoral registration officers the power to grant an emergency proxy to voters in such circumstances. When applying for this proxy, voters will need to provide information about the medical event and why it meant that they could not apply for a proxy before the usual deadline. The change will ensure that voters are not unfairly prevented from voting because a serious medical event happens at a particular point in the electoral timetable.
Amendments 8, 15, 19, 25, 26, 43, 50 and 64 all relate to the status of Easter Monday in the administrative timetable. Electoral administrators have asked that Easter Monday should be added to the list of days that do not count for the administrative timetable for the poll at a referendum. Those days are normally referred to as “dies non”.
The other dies non are Saturdays and Sundays, Christmas Eve and Christmas Day, bank holidays in Scotland and any day which is appointed for public thanksgiving or mourning. Electoral administrators are concerned that having a different set of dies non from those that apply at other devolved elections could possibly lead to voter confusion and have suggested that a standardised approach would be more appropriate. The Government has accepted that argument and we are lodging the amendments that will standardise the dies non across devolved elections and referendums.
Amendment 9 was requested by electoral registration officers and removes the power for the chief counting officer to prescribe the form of the application to register to vote. The power to prescribe a bespoke registration form for the 2014 independence referendum was needed because it was open to 16 and 17-year-olds to register for a vote at that specific referendum. Normally when someone completes an application to register form, they are automatically registered for all elections at which they are eligible to vote. However in 2014, 16 and 17-year-olds did not have the vote at any other election and therefore an application form was required that specifically referred to them being allowed to register only for the independence referendum.
That power allowed the chief counting officer to prescribe that form and to require electoral registration officers to use it. Because the Government has now extended voting to 16 and 17-year-olds at all devolved elections—which I would like to see for all elections in the UK—there is no need for a separate bespoke form. The normal online and paper registration forms make appropriate references to 16 and 17-year-olds being able to vote at Scottish Parliament and local government elections, and therefore at any referendum. There is no need for the chief counting officer to prescribe the registration form for future referendums, and this amendment removes that unnecessary and sometimes confusing provision.
Amendments 11 and 24 were requested by the Electoral Commission and will require the chief counting officer to consult with the Electoral Commission before issuing directions to counting officers or electoral registration officers.
As it stands, the bill does not require consultation with the Electoral Commission. However, consulting with the Electoral Commission before issuing directions is already current practice at local government elections and is the proposed procedure for Scottish Parliament elections set out in the Scottish Elections (Reform) Bill. Even without the amendments, it is likely that the chief counting officer would informally consult with the Electoral Commission, as happened at the 2014 referendum. However, the amendments will formalise the practice that was used at the 2014 referendum and will ensure that consultation with the Electoral Commission is always conducted in future polls in the same manner, thus creating a high standard of administration and consistency. Consulting with the Electoral Commission ensures that directions have been externally reviewed, and the amendments will increase trust in the way that the referendum is run.
Amendments 10, 16, 17, 20, 21 and 22 allow for electoral registration officers to provide counting officers with two interim updates of the electoral register in the run-up to the close of registration, which is 12 days before the date of the referendum. Those changes will bring referendums into line with devolved elections, when the provision of interim updates is normal practice. The amendments have the support of electoral registration officers. Interim updates assist counting officers to issue poll cards and postal ballot packs to newly registered voters, or those who have changed their method of voting, as early as practicable.
Amendments 12, 13 and 14 have been lodged at the request of electoral registration officers. Currently, paragraph 16(4) of schedule 1 to the bill allows for electoral registration officers to appoint deputes for the purposes of the bill. However, we have received representation from EROs that that differs from normal practice at elections, when local authorities approve depute electoral registration officers. They are concerned that there might be a difference in what deputes are approved to do, which might cause administrative difficulties. In line with that representation, we are now proposing that the bill be amended so that local authorities rather than EROs will be responsible for approving deputes. That will mirror the equivalent provision for deputes at other devolved elections.
Amendment 65—I am coming to a conclusion, convener—will allow the code of practice for electoral observers at local government elections to apply at referendums that are held in Scotland. That change has also been requested by the Electoral Commission.
The Scottish Government is also seeking to extend the same code to Scottish Parliament elections through another bill that is currently before the Parliament. The code of practice for observers at Scottish local government elections is already in place and was laid before the Parliament by the Electoral Commission in December 2018. The code of practice explains how to become an observer and what is expected of an observer, and it provides guidance for electoral officials on working with observers. It is written generically in a way that applies to observation at any electoral event and is not specific to a particular election. The code functions well for other elections and referendums. Applying the existing code of practice to referendums under the legislation that we are discussing today will avoid the Electoral Commission having to prepare a separate code.
I hope that those explanations are helpful.
I move amendment 5.
Adam Tomkins
I have a question about amendment 24. I want to ensure that I have understood it properly. It says:
“Before giving a direction to a registration officer, the Chief Counting Officer must consult the Electoral Commission.”
However, I do not understand what those directions are. Am I correct in thinking that those directions are not given to counting officers at the count, so there is no sense that anything will be slowed down in the process of counting votes, and that the directions are given by the chief counting officer to counting officers well in advance of the count? I just want to be clear that the amendment will not inadvertently slow down the process of counting votes.
Michael Russell
It will not. There is a power of direction for the chief counting officer. It exists in, for example, local government elections. However, it is a power of direction in terms of the conduct of the election; it is not a specific power of direction at a polling place.
Patrick Harvie
The amendments in this group are, for the most part, uncontroversial improvements. However, I am still a little unclear about the rationale for adding Easter Monday in amendment 8 and those that follow it.
It seems to me that it would be consistent for the minister to bring an amendment with a long list of lots of different religious festivals, or not to include religious festivals. Christmas is, clearly, more than a religious festival, as it is something that is celebrated by secular society at large, not only by people who are religious. It seems to me that we would be consistent either if we included religious festivals of all kinds, as well as public holidays and secular events, or if we had a much more limited list. It is unclear to me why regularity is best achieved by adding Easter Monday to everything rather than removing it from everything. Unless there is a slightly clearer rationale for that, I will record an abstention on amendment 8 and allow the others to go through if it passes.
Michael Russell
I am seeking consistency with the established list. It is open to a member to seek to amend the established list in other legislation. However, at the request of the registration officers, who seek consistency with the established list, I have lodged that amendment. Easter Monday is on that list, because it remains a holiday.
I doubt that I have convinced the member on this matter, and I note his position.
Amendment 5 agreed to.
Amendments 6 and 7 moved—[Michael Russell]—and agreed to.
Amendment 8 moved—[Michael Russell].
The Convener
The question is, that amendment 8 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Arthur, Tom (Renfrewshire South) (SNP)
Bibby, Neil (West Scotland) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Tomkins, Adam (Glasgow) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Abstentions
Harvie, Patrick (Glasgow) (Green)
The Convener
The result of the division is: For 10, Against 0, Abstentions 1.
Amendment 8 agreed to.
Amendments 9 to 22 moved—[Michael Russell]—and agreed to.
Schedule 1, as amended, agreed to.
The Convener
We will now suspend the meeting for a five-minute break.
10:42 Meeting suspended.10:49 On resuming—
Section 7—Chief Counting Officer
Amendment 23 moved—[Michael Russell]—and agreed to.
Section 7, as amended, agreed to.
Section 8 agreed to.
Section 9—Functions of the Chief Counting Officer and other counting officers
Amendment 24 moved—[Michael Russell]—and agreed to.
Section 9, as amended, agreed to.
Sections 10 to 12 agreed to.
Schedule 2—Conduct rules
Amendment 25 moved—[Michael Russell]—and agreed to.
The Convener
We come to the group on day and time of poll. Amendment 80, in the name of Adam Tomkins, is grouped with amendments 96 to 98.
Adam Tomkins
Amendment 80, in my name, would ensure that the date of any referendum that was held under this bill would not be the same day on which any other election or poll was scheduled to be held throughout Scotland. The amendment would give effect to a recommendation of the Electoral Commission and to the force of evidence that the committee heard at stage 1.
Our committee adviser told us in our stage 1 inquiry:
“Research shows that holding electoral events simultaneously can lead to lower quality electoral processes.”
The Association of Electoral Administrators endorsed that view and said that
“having more than one type of event on the same day adds to the pressures and difficulties in relation to resources.”—[Official Report, Finance and Constitution Committee,18 September 2019; c 19.]
On the basis of that and other like evidence, the committee concluded that, given that referendums are most likely to be called solely on significant issues of major public interest, they should be stand-alone events. That is in the interests of those who run electoral events, such as electoral administrators, and of voters. The Electoral Commission is quite clear about that point. It said in its report on the 2016 EU referendum, which was published in September 2016, that
“the starting assumption for Governments and legislatures should be that referendums are not normally held on the same day as other significant or scheduled polls. In particular, referendums on significant constitutional questions, where political parties and other campaigners are likely to be working more closely together, should never be held on the same day as other scheduled polls.”
My amendment seeks to give force to the principle that referendums, which—let us face it—are likely under this bill to be held on significant constitutional issues, if they are held at all, should not be held on the same day as other polls.
The cabinet secretary may argue that the word ”normally“ should appear in the amendment. It does not do so for the obvious reason that, in all our interaction on the bill, I have been consistent in asking the cabinet secretary to give me examples of issues other than Scottish independence that he imagines that the bill will be used for, and he has not given me any. I do not think that this bill—
Tom Arthur
Will the member take an intervention?
Adam Tomkins
I will in a second. I do not think that it is realistic to expect that we will have referendums on budgets or reproductive rights or anything else under the bill. We are talking about a bill that is designed to pave the way for an independence referendum, and that should not be held—well, it should not be held full stop, but it should certainly not be held on the same day as any other poll in Scotland, whether a referendum or an election.
Tom Arthur
I want to understand the implications of Adam Tomkins’s amendment. If a referendum was legislated for in this Parliament and, subsequent to that, an electoral event took place simultaneously as a consequence of a UK Government action, such as a general election or a UK-wide referendum, what would happen? He used the example of 2011 when the alternative vote referendum took place on the same day as the Scottish parliamentary election.
Adam Tomkins
That experience was an unhappy one and it should not be repeated. If this Parliament were to legislate to the effect that no referendum should be held on the same day as another significant electoral event, the UK Government would want to take that very seriously. Absent that, there is nothing to stop the UK Government holding a general election on the same day as a referendum.
My amendment would not guarantee that we could not have a repeat of 2011, but it points in that direction and should therefore be adopted.
On the other amendments in the group, in the name of James Kelly, I am agnostic about changing 7 am to 6 am and changing 10 pm to 11 pm, but I am certainly not agnostic about changing polling day to a Saturday. In the light of the extraordinary intervention by the Chief Rabbi yesterday in the general election campaign, what consultation has James Kelly undertaken with the Jewish community in Scotland about whether holding a referendum on Shabbat is something that the Jewish community would feel relaxed about?
It seems to be yet another very unfortunate sign that the rights of the Jewish community are being wilfully overlooked by what used to be one of the major parties of the United Kingdom. Polling is held on a Thursday in this country for a good reason—it is not a religious day in any of the major religions in the United Kingdom. Friday voting would cause significant complications for the Muslim community, Saturday voting would cause significant complications for the Jewish community, as it is Shabbat, and Sunday would cause significant complications for practising Christians. I am not opposed to and have an open mind about changing the polling day, but I would want to see that there had been substantial consultation with religious minorities, particularly in the current context of the extraordinary intervention by the Chief Rabbi yesterday.
I urge the committee to reject amendment 96, in James Kelly’s name, and to support my amendment 80.
I move amendment 80.
James Kelly
I am pleased to speak to amendments 96 to 98. Amendment 96 is a probing amendment, and I will explain shortly why I lodged it. However, I certainly want to move amendments 97 and 98.
There is a duty on us all to seek to increase voter turnout. Thursday is always seen as the traditional polling day, but I think it is worth examining the possibility of weekend polling days. Amendment 96 prescribes a Saturday, but a Sunday could also be looked at. Moving to a day on which not as many people are at work would give a greater opportunity for people to participate. People who work on a Thursday might also have caring or childcare responsibilities that potentially restrict them in getting to the polling station. I am interested in probing whether having voting on alternative days might increase voter turnout.
With regard to the hours, I think that we should move from a 15-hour voting day to a 17-hour voting day. Increasingly, people are leading more flexible lives and have more demands on their time; therefore it makes more sense for the polls to open at 6 am and close at 11 pm. It does not seem that long ago that council elections were constrained to an 8 am start and a 9 pm finish, and the move to a 7 am start and a 10 pm finish has increased voter turnout in those elections.
I ask members to take those points on board when considering my amendments.
John Mason
My main argument, especially against James Kelly’s amendments, is that the committee has not taken evidence on them and, as Adam Tomkins indicated, some of the changes could be quite controversial and impact sections of the community. Frankly, we have not looked at the issues in any detail whatever. It would be very unfortunate to accept amendments at stage 2 when we did not consider those issues at stage 1. I feel quite strongly about that aspect of the parliamentary process—it is even worse if such amendments appear at stage 3 without any evidence having been taken.
In my opinion, to have amendments appear at stage 2, when we have not looked at those issues at stage 1, undermines the whole bill process.
11:00I have some sympathy with the idea of voting not being fixed to Thursdays. What is so magical about Thursdays? Many schools need to close, particularly in Glasgow, which is hugely disruptive to parents, teachers and children, so there is a lot to be said for Thursday being a bad day for voting. However, there are problems with other days, too. Some countries have voting over several days, so another option would be to have voting over three days or a week, but we have not taken evidence on that.
In relation to the hours of voting, there are polling places in my constituency to which fewer than 100 people turn up over 15 hours in a day. Those polling places would be even quieter if they were open for 17 hours. One of the answers for people who cannot go to vote, including the staff at polling places, is to give them a postal vote. We have to look at the issue in conjunction with whether we can have postal votes or other forms of voting, rather than just extending the hours for which polling places are open. We do not know whether staff will be able to get to polling places if there is a 17-hour polling day.
For all those reasons, particularly the fact that we have not taken evidence on the matter, I suggest that we reject the amendments in the group.
Patrick Harvie
It would have been sensible to have consulted properly before lodging amendment 96. I am quite open to the idea, in principle, of multiday voting, which John Mason mentioned. Although it is an interesting principle, there would be significant practical implications, including the cost of running the poll and the volunteer time. We all know that a vibrant election relies on a lot of volunteer effort from campaigners and people in political parties, and we should not take that for granted.
I am not convinced that we should change the bill, at this point, to go for voting on a different day or for multiday polling. I am not aware of there being a desperate demand for polling stations to be open from 6 am and until 11 pm to deal with rushes at those times, so I am not convinced that there is a need to extend the times that polling stations are open.
On amendment 80, in the name of Adam Tomkins, I think that we all agree that referendums should be stand-alone events. Not only should a referendum not take place on the same day as another electoral event; the two events should probably be separated by a reasonable period.
I do not share Adam Tomkins’s confidence that we can simply rely on the goodwill of the UK Government to respect a poll date that has been set for a referendum and to not call an election in the same period. Just recently, the 2017 snap election was called right in the middle of the Scottish local election campaign. The respect for the need to separate electoral events has simply not been shown to exist, so I do not think that we can rely on it. If we were to agree to amendment 80 and were to subsequently pass legislation that set the date of a referendum, but a UK snap election were called in the middle of the campaign, I worry that it would be our referendum process that would be subject to court action. I worry that there would be a challenge to the legitimacy of holding the referendum during a UK election that had subsequently been scheduled.
I very much worry that we are being asked to bind ourselves to something over which we do not have control. Even though electoral events should stand alone, I am not convinced that amendment 80 is a reasonable way of achieving that.
Tom Arthur
On amendment 96, which concerns polling day being on a Saturday, I share Adam Tomkins’s concerns about the apparent lack of consultation. As someone who grew up in East Renfrewshire and who represents part of it, I am particularly conscious that polling day being on a Saturday could create a barrier to voting among certain communities, particularly the Jewish community, and that it could prevent people who are politically engaged and involved across all parties from participating in election day activities. That is another potential barrier.
There would have to be detailed consideration, engagement and consultation before that measure could be taken any further.
On amendments 97 and 98, I have not sensed any particular demand for people to be able to come to polling stations before 7 am or after 10 pm. I note that there is no reference to when a count should take place. If a count were to take place on a Sunday, following a Saturday referendum, there would be implications for the Western Isles in particular. Again, I have the sense that amendment 96 was drafted without fully considering all our communities across Scotland. There is also the issue of the count being delayed by a further hour if polling continues until 11 pm, which means that staff at the count and Police Scotland staff would face delays in concluding their day’s work. For those reasons, I am unable to support James Kelly’s amendments 96 to 98.
Alex Rowley
I take on board the point that Patrick Harvie made about amendment 80. However, I think that the principle of the amendment is right and I am happy to support it.
James Kelly said that amendment 96 is a probing amendment. I think that is right. I go to mass on a Sunday morning, but if there was voting on a Sunday, that would not prevent me from going to mass and voting.
The irony is that the bill is really about holding a Scottish independence referendum. As we know, the independence referendum had one of the highest turnouts, certainly in my lifetime. However, when we are talking about referendums and elections, we need to think about why turnout is generally poor across Scotland. That is the point that James Kelly is probing with the amendments. It is the same for elections, by-elections and council elections. In Hong Kong last week, there was a 70-odd per cent turnout for local authority elections—although that is because of the current difficulties there. There are genuine issues.
I am happy to support amendment 80 in the name of Adam Tomkins. Given that James Kelly’s amendments 96 to 98 are probing amendments, I hope that he will decide not to move them today.