Referendums (Scotland) Bill

The Convener

Agenda item 2 is to take evidence on the Referendums (Scotland) Bill. I welcome our first panel. Professor Justin Fisher is head of the department of social and political sciences at Brunel University London, and Dr Alan Renwick is deputy director of the constitution unit at University College London. Thank you for the written submissions that you have provided to the committee. I also thank others who have done similarly. The submissions are very helpful.

We will go straight to questions. The written evidence that we have received highlights the need for a minimum period of at least six months between the referendum legislation coming into force and its being implemented. In your views, does that six-month period apply to the legislation for each referendum or does it apply from the date of any framework bill for referendums being in place? I ask that question because it seems to me that almost all the required rules and regulations would be in place as a result of the passing of a framework referendums bill and, therefore, that the intention behind the Gould convention of a six-month period will have been all but met. That is my perspective, but you might have a different viewpoint, which I would like to understand. Who would like to take the floor first?

Dr Alan Renwick (University College London)

Thank you for inviting me. I agree that the Gould principle is that the rules of a referendum should be clear at least six months in advance, and that that implies that, if all the rules are in place and the only matters to be decided subsequently are the question and the date, the Gould principle would not be broken by setting a referendum somewhat less than six months in advance of the poll.

That said, it is clear from experience in Scotland and throughout the United Kingdom that allowing a decent amount of time for any referendum is really important. Above all, it is vital in order to allow voters time to hear from the campaigns, reflect on the arguments and come to their judgment. It is also important, as Justin Fisher in particular has pointed out in his written submission, so that there is fairness between the campaigners in their preparations for the poll. It is important for administrative purposes, as well.

Although the Gould principle applies just to the rules of a referendum, I encourage the view that doing referendums slowly and carefully is always the better approach to take.

Professor Justin Fisher (Brunel University London)

I would echo Alan Renwick’s thoughts on that. It is important to recognise that referendums are relatively unusual mechanisms and that they will, almost by definition, attract an element of controversy. Therefore, it is important not to rush important considerations in the preparation for a referendum. Considerations include agreement on the question’s wording, which can be very difficult. As I say in my submission, although the designation process worked very well in the Scottish independence referendum, it worked very badly in the European Union referendum in 2016.

The lesson that we are learning—before our very eyes, at Westminster—is that rushing things is not a good way to proceed if the process is to be orderly. Therefore, my advice—which might seem to be unusually lengthy, but is in line with Alan Renwick’s—is that it would be better to be conservative about the time period than to try to rush things through.

Angela Constance (Almond Valley) (SNP)

I am interested in the actual referendum period. I appreciate that there is a timeframe for the passing of the necessary legislation. Dr Renwick, in your submission you say that the referendum period should be

“determined on a case-by-case basis”.

What bearing does the subject of the referendum have on the period? You made other points about separating out deadlines for registering participants from those for the controlled campaign period. How do you get to the point at which the judgment about what is too long or too short a referendum period is based on good principles?

Dr Renwick

I clarify that I did not say that the referendum period should be decided on an ad hoc basis; I said that it would not be unreasonable to think that some variation might be appropriate. In saying that, I was thinking that there are some issues for which a particularly long referendum campaign might be appropriate. For example, it is widely agreed that it was actually a good thing that the campaign in 2014 was as long as it was, because it allowed the issues to be dealt with in considerable depth.

The more important point is that a minimum referendum period should be defined. At the moment, as far as I can see, the bill does not do provide for that. Internationally, the absolute minimum period that is generally seen as being at the limit of what is acceptable is four weeks. Therefore, in my submission I suggest that a referendum period of at the very least four weeks should be allowed for. That takes account of the fact that the bill proposes that designation of lead campaigners should happen before the referendum period. That means four weeks for applying for designation, 16 days for determination of the designation and four weeks for a campaign, which gives a total of 10 weeks, which mirrors the UK-wide referendums framework in the Political Parties, Elections and Referendums Act 2000—PPERA.

A number of people have suggested in their submissions that the minimum period should be longer than that—that it should be 10 weeks, with designation taking place earlier than that, which would certainly be better. An absolute minimum of four weeks is fundamentally what is needed, but a minimum of 10 weeks would be better.

Professor Fisher

I share Alan Renwick’s view. I do not see a case for rushing. Referendums are comparatively rare and are generally on issues that are of great importance, so we should not try to push things through in a hurry.

As I have outlined in my submission, even the PPERA framework can disadvantage sides in a referendum in which there is more than one competitor for designation. The lesson that emerged very strongly from the 2016 EU referendum was that that should be avoided, which therefore elongates the period before the controlled period proper. It might be that the controlled period could be relatively short, but it is very important that the preparations be done over a longer period.

Angela Constance

I am conscious that the International Institute for Democracy and Electoral Assistance—International IDEA—recommends that legislation

“should allow for an adequate period for the campaign”.

Obviously, practice has varied, over the piece. In relation to the alternative vote referendum, there was three months from the passing of the legislation to polling day. I do not remember anybody complaining about that.

The Venice commission talks about the need for

“fundamental aspects of referendum law”

to be in statute and for more detailed technical parts to be in regulations. Where do issues of timing fit in? Are they “fundamental aspects” that should be in statute or should they be in regulations? Is there—Dr Renwick touched on this—scope for looking at such matters case by case?

Professor Fisher

I think that the experience of the 2016 referendum suggests that leaving Governments to decide the period between the legislation and the referendum date can cause immense difficulty. That is precisely what we saw in respect of the leave side’s campaigns in the build-up to 2016.

There is an opportunity to learn from the experiences of major referenda in these islands. It strikes me that the very good lesson has been learned that Governments will, if they are given the ability to introduce a shorter period between the legislation and the referendum date, use it. That does not seem to be democratically very healthy.

Dr Renwick

The key thing is that the minimum period be specified in primary legislation. If it were deemed to be appropriate to extend that period on a particular case, that would not cause problems for me. A minimum period is fundamental: in his evidence, Justin Fisher sets out a very strong case for extending that minimum period beyond the PPERA minimum period.

Angela Constance

My final question is a more general one. The bill is derived from past practice and is relatively full of examples of good practice. Where could it be, as I think someone said in evidence, more forward-looking and a bit less conservative? Where is there room for democratic innovation?

Professor Fisher

I will talk about the regulatory aspects; innovation is more Alan Renwick’s bag. We do elections in this country pretty well, because we do them regularly. We do not do referenda in this country consistently well, because we have not had many of them.

In 2014, we had a very successful referendum and, in 2016, we had a very unsuccessful referendum, from the perspective of the workings of the legislation. We need to learn from that. One of the big lessons of the 2016 referendum was that campaigners, whether they are registered or unregistered, were able to use the legislation to render such things as spending limits virtually meaningless. That cat is out of the bag. If we have more referenda, there is, unless that loophole is closed, a real danger that problems will arise.

Relatively few problems arose in 2014. In light of the experience of 2016, if steps are not taken on spending limits, I fear that there might be difficulties in Scotland. This is an opportunity to address some of the regulatory issues that I highlight in my written evidence, and specifically those on the spending limits for permitted participants and non-registered participants.

The Convener

We will come back to spending limits. Your written evidence says that the bill is not fit for purpose, so we need to delve into that a bit more.

Are you finished, Angela?

Angela Constance

I am interested in hearing Dr Renwick’s views on the scope for democratic innovation.

Dr Renwick

The bill is based strongly on a 20-year-old Westminster legislative framework. Given that this is an opportunity to establish a new legislative framework, it would be good to think hard about what changes would help Scotland to be at the forefront of democratic practice, rather than being a couple of decades behind democratic practice.

On the regulatory side, in addition to Justin Fisher’s points are many big questions around the rise of digital campaigning. A lot of work on that is going on in Westminster and Whitehall, where people all accept that existing rules are not fit for purpose. It is important that the Scottish Parliament pushes forward on that front.

09:15  

Beyond regulation, in my evidence I set out the scope for deepening the democratic quality of referendums in Scotland in two principal areas. One is the quality of information that is available to voters during a referendum campaign. In particular, lessons can be learned from Ireland, where citizens assemblies preceded the referendums, most notably on same-sex marriage, on abortion and on repealing the eighth amendment. There is lots of evidence—we might be able to talk more about it with Theresa Reidy in a couple of weeks—that the citizens assemblies helped the quality of debate in the subsequent referendums. They surfaced the range of arguments, identified arguments that were weaker or stronger, and led to much higher quality debate during the campaigns.

My other issue is how to avoid the mess that Westminster is now in with respect to Brexit. The difficulty of the Brexit referendum—in terms of its structure, an independence referendum would be the same, in essence—is that it was on a basic principle, not a precisely worked-out plan. We call that a pre-legislative referendum. A difficulty arises if people vote for a principle, then the version that is worked out through subsequent negotiations is remote from what was promised during the referendum. My view, and that of last year’s report by the independent commission on referendums that we ran, is that if referendum promises on a broad principle do not match what is subsequently delivered, there ought to be a second referendum that has been baked into the process from the start, so that voters are clear what they are voting for. That would ensure that there is a proper democratic mandate for what subsequently happens—it would ensure that Parliament does not get mired in debates about what is the will of the people, and can stand above that question. Therefore, a referendum would not end up with the mess that people on all sides must accept Westminster has got itself into.

The Convener

We have opened up quite a wide area. I will focus on the more technical bits of the bill, but I say to Professor Renwick that there is a distinct difference with what happened in Scotland’s referendum in 2014; a white paper existed prior to the referendum, but there was not one prior to the EU referendum. Regardless of whether we thought the white paper was good, at least it was there.

Dr Renwick

Yes.

Adam Tomkins (Glasgow) (Con)

I will not be drawn on the white paper, convener, although I am quite tempted, given that introduction.

We have covered one aspect of the bill’s regulation-making powers—namely, the very broad powers that ministers would enjoy to specify the referendum period, if the bill were to be enacted in its current form. It seems to me that at least two other aspects of the bill would give ministers very significant powers. Dr Renwick has just said that we should not be too wedded to PPERA as a model because it is nearly 20 years old, but a key difference between the bill and the UK legislation is that, unlike in UK law, ministers would have the power under the bill to call a referendum. Is that an advance, or is it a retrograde step?

Dr Renwick

It is very clearly a retrograde step. It is clear from international practice that referendums should not be used to circumvent the representative process but should supplement it. Calling a referendum is a big decision. In recent years, we have seen the extent to which a referendum can have fundamental effects on politics, society and how we all think of ourselves. The calling of a referendum should be subject to the greatest possible scrutiny in advance. I would advocate that, as in the Irish case, that scrutiny should take place not only in Parliament but more widely, and should include citizens assemblies and other processes. However, at the very least, the calling of a referendum should be scrutinised in Parliament, where it should be subject to the greatest possible scrutiny.

That is possible only if a referendum can be called only through primary legislation rather than secondary legislation. Overwhelmingly, that is what international practice indicates should happen. The vast majority of referendums are post-legislative referendums, whereby a bill has gone through Parliament and a proposal has been made to put an issue to a referendum. That way, Parliament is not circumvented. I think that it would be highly undesirable for the Parliament here to allow itself to be cut out of the process.

Adam Tomkins

Do you agree with that, Professor Fisher?

Professor Fisher

I have nothing further to add. Alan Renwick makes a very strong case, and I agree entirely.

Adam Tomkins

Dr Renwick, the main example that you refer to in your written evidence is the power in section 37, whereby ministers will be able to amend the act by regulations. You say that that power should be

“defined more tightly or removed.”

If we were not to remove it but to define it more tightly, how should we do that? What tightness of definition would you advocate?

Dr Renwick

The principle should be that such powers should not exist unless there is a specific justification for them. An example that I give later in my evidence is a power to set up a citizens assembly in relation to a referendum. Because we are talking about a relatively innovative way of doing referendums, I would not advocate putting into the legislation a requirement that there must be citizens assemblies, but it would be sensible to empower ministers to set up that kind of thing.

There might be other aspects of the detail of the regulation of referendums that it would be sensible to deal with in secondary rather than primary legislation, but I would follow the advice of the Electoral Commission on that—I would not want to define that boundary.

Adam Tomkins

I would like to clarify an issue that was raised by Angela Constance in her questioning. I do not want to retread the ground that has been covered on specifying the referendum period, but I think that Angela Constance said—I am sure that she will correct me if I am wrong—that nobody objected to the referendum period for the AV referendum in 2011 being three months. However, that was a post-legislative referendum, not a pre-legislative referendum. Am I right in thinking that, in your judgment, that would make a material difference on the question of timing?

Dr Renwick

I am not sure that that would necessarily make a difference, but it could do.

The Electoral Commission’s view was that a longer period would have been preferable in 2011, because the legislation for the AV referendum included a range of regulations pertaining to the campaign, so it did not entirely conform to the Gould principle. There should have been a longer period in that case.

Professor Fisher

Whether anybody objected at the time is neither here nor there. The experience of 2016 suggests that, with the benefit of hindsight, the short referendum period was unwise and created significant difficulties for campaigners and for the fairness of the campaign.

Adam Tomkins

That was very clear and helpful. Thank you very much.

The Convener

I want to pick up on Adam Tomkins’s second question about the use of regulations. The issue of what powers ministers have in this area is not black and white.

Sometimes, powers are there to deal with incidental or unexpected circumstances that arise. Although the EU referendum was mostly legislated for through primary legislation—the European Union Referendum Act 2015—important parts of the EU referendum, including the date of the referendum, the referendum period and the periods of reporting and spending during the campaign, were legislated for through secondary legislation.

I understand from Dr Renwick’s evidence that having regulation by ministers, rather than dealing with issues in primary legislation, would be unsatisfactory, but in any legislation there are areas in respect of which any unexpected circumstances or incidental matters must be tidied up.

Dr Renwick

Yes, but the difficulty that has arisen with the PPERA framework is that, because it is now 20 years old, we have had an accretion of various bits of additional rules in the primary legislation and in the secondary legislation for each referendum, and now is an opportunity for the Scottish Parliament to take all that and provide a consolidated set of rules in primary legislation. You are right: circumstances change, and rules need to change, and it is difficult to pass primary legislation on all those matters.

The Convener

I am not saying that we would do this, but if the committee was to consider recommending to the Government a super-affirmative process—to use a Scottish Parliament term—around regulations, would that help?

Dr Renwick

Yes, but there are some matters that are currently proposed for regulations that in my view should not be in regulations.

The Convener

I understand that.

Adam Tomkins

Just to be clear, we are talking about section 37 here, not section 1.

Dr Renwick

Yes. At the moment, the section 37 provision allows any aspect of the bill—the act, as it would then be—to be amended by secondary legislation, and that seems to me to be inappropriate.

Adam Tomkins

In your view, would that be inappropriate even with a super-affirmative procedure?

Dr Renwick

Yes.

Professor Fisher

I differ from Dr Renwick here in that there is a danger of characterising PPERA solely in the context of referendums. PPERA may be 20 years old, but in respect of elections it has been remarkably successful. There have periodically been amendments to the legislation—for example, adjusting donation declaration caps on loans. That has been done very successfully and there is a great deal of satisfaction among participants in elections with the way in which they are run.

On PPERA, it would be reasonable to say that, although elections have been successful under that 20-year-old framework—and I definitely agree that it needs to be updated in respect of digital campaigning—the referendum aspects are rather different, because referendums have been so infrequent and have thrown up issues that were probably not well thought through when the original legislation was passed.

Tom Arthur (Renfrewshire South) (SNP)

I will pick up on section 37. It seems that the policy intent is effectively to have a keeping-pace power in order to keep pace with best practice in legislation concerning referendums and policy. Is it possible to characterise the issue as the policy objective not being met by the wording of the bill? Could the provision in the bill be modified and more tightly defined, so that it is clear that the powers are specifically for keeping pace with best practice and could not be abused by a future Executive?

Dr Renwick

For me, there are two principal difficulties with the provision. One is the generality of the section, which applies to the whole of the bill—there are no elements of the bill that are protected. I do not have the wording in front of me, but the other issue is that the bill says that changes can be made to the act in relation to

“any modification (or proposed modification) of any other enactment”.

To me, that seems an extraordinary power to confer on ministers—that they can propose changes to the act based on proposed modifications of other legislation, whether or not those modifications have gone through. The bill does not indicate what stage the proposal must have reached.

I would defer to lawyers on this point—I am not a lawyer—but it sounds as though a minister could propose some change to another enactment and, on that basis, would be able to propose, via secondary legislation, a change to this act. That seems a strange power to give to a minister.

09:30  

Tom Arthur

Could the wording be tightened in such a way as to avoid that dubiety? We could make it clear that the power would be used in relation to legitimate proposals by reputable bodies, for example, and that it is specifically to allow the act to keep pace with best practice without the need to resort to primary legislation.

Dr Renwick

One change would be to simply remove the words “or proposed modification”. On whether it would be desirable to make provision in relation to recommendations from the Electoral Commission, for example, you might want to pick up that issue with the Electoral Commission, as I do not have a strong view on it.

Tom Arthur

Do you want to add anything to that, Professor Fisher?

Professor Fisher

I agree with Alan Renwick on the issue. It would seem extraordinary to confer those powers. Even with the tightened wording that you suggest, the definition of “legitimate” would be a matter for debate. Most issues that come up for change are fairly major, such as the issue of digital imprints, and those can be dealt with through primary legislation. I share Alan Renwick’s concerns. The provision seems to me to be an unnecessary part of the bill.

Tom Arthur

I want to go back to Dr Renwick’s remarks concerning the powers that are conferred on the Executive earlier in the bill. You described that as “a retrograde step”, and I think that you said that it would “circumvent the representative process”. That is quite strong language. To be precise about language, the literal meaning of “circumvent” is “to go round”. However, the proposal in the bill is for the affirmative procedure to be used, which would necessitate a minister coming before a committee to seek its approval, with the instrument having already been scrutinised by the Delegated Powers and Law Reform Committee. A vote in the chamber would then be required. Do you accept that the phrase “circumvent the representative process” is slightly too strong a description? Further, is there an argument that the use of the super-affirmative process might allay some of the concerns that you have expressed?

Dr Renwick

It is the circumvention of the full representative process. The processes of primary legislation are set out as they are for a reason. They set the degree of scrutiny that is deemed appropriate for major decisions. 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. No form of scrutiny of secondary legislation matches the scrutiny that is given to primary legislation. If it did, what would be the point of doing something through secondary legislation rather than primary legislation? It seems to me that the reason for doing something through secondary legislation is that it is easier to do, but that is not how the representative system is set up; it is set up to provide checks and balances. In less healthy democracies and in non-democracies, there is a long history of strong leaders using referendums to get round Parliaments. Scotland should not be going there, and it should not open itself to the suspicion that it could be going there.

Tom Arthur

You have again talked about going round Parliament but, to be clear, the proposal would have to go through Parliament.

I have one final question. In effect, the bill proposes to capture all the aspects of referendums, shy of the question, the date and the referendum period. When previous referendums have been legislated for by primary legislation, that legislation has contained a range of aspects. PPERA covers campaign rules but not process, whereas the bill covers process.

In effect, all there would be to decide would be the question, the date and the period. There would still be an opportunity for full parliamentary scrutiny; a committee could take evidence, both written and directly from ministers, and there could be a debate in Parliament. I am trying to understand the Government’s motivations. Is it more about giving certainty by having a defined time period rather than any nefarious motivations, which perhaps your remarks imply?

Dr Renwick

The biggest decision that is left unsettled by the legislation is whether to have a referendum. Within that, there is the question of what the question will be, what the timing will be and so on. However, the decision on whether to have a referendum is a fundamental one. There are three differences between the process for any secondary legislation and the process for primary legislation. First, there is less scrutiny of secondary legislation; secondly, secondary legislation is unamendable; and, thirdly, symbolically, it is somehow saying that it is of secondary importance. I do not think that any of those differences are desirable in the context of any referendum.

Patrick Harvie (Glasgow) (Green)

I am sorry to jump back a wee bit, but I want to follow up on a point that Adam Tomkins raised. Dr Renwick, you talked about the distinction between pre and post-legislative referendums. I entirely understand your point, but I am not quite clear where you think that should lead us. Are you arguing that pre-legislative referendums are, in principle, bad practice and should not happen or that there should be a formal threshold for when a pre-legislative referendum requires a further confirmatory referendum? In the Scottish context, I am thinking about the 1997 devolution referendum. It was pre-legislative, but I do not think that there was a general view that it was in any way flawed or illegitimate simply on the basis that that was how it happened.

Dr Renwick

You are right about that. What we have set out, and what the independent commission on referendums set out in its report last year, is that if, in calling a pre-legislative referendum, the Government sets out in detail in a white paper what it expects to happen, as happened in 2014, and then delivers on that, there is no need to have a further referendum. Broadly speaking, that is what happened in 1997, too; there was a clear plan, which was delivered on. However, if that is not delivered, democracy requires there to be a further referendum.

If the Government thinks that the matter is sufficiently important that it requires the consent of the electorate as a whole, such consent should be informed consent—it should be informed by an understanding of what the proposed change to the status quo will be, once that proposal has been worked up.

Patrick Harvie

So, the objection is to an undefined principle. I think that a lot of people would agree that the UK’s current political situation stems from a mismatch between the simple proposition to leave and what is deliverable. However, there are also those who would say that they did not vote for a deal and that they have not been betrayed by no deal. It is a matter of interpretation whether the promise has been met. It seems difficult to codify that.

Dr Renwick

Yes. The independent commission proposed that it would be for the Parliament that called the referendum to determine whether what had been agreed fitted the proposal that was set out before the referendum was held, because you cannot have the courts deciding that. It is a fundamentally political question. In part, this is an attempt to defuse some of the awkward politics that Westminster has got itself stuck in. Moreover, it is an attempt to ensure that there can be informed consent on these fundamentally important questions. However, you are right that the messiness of politics is the messiness of politics, and you cannot excise that entirely from the process.

Patrick Harvie

Okay. Thank you.

The Convener

On that matter, Dr Renwick, in paragraph 42 of your evidence you say:

“The dangers could be greatly reduced if the Scottish government produced a detailed plan for independence (as it did ahead of the 2014 vote)”.

We discussed that earlier.

You go on to say that

“In the event of a vote for independence”—

others might not agree, but this is a bill about referendums and not necessarily about an independence referendum—

“it would allow the Government to claim a mandate for its plan both before the Scottish Parliament and in ... negotiations ... with the UK”.

Will you expand on that?

Patrick Harvie

Bearing in mind that not all yes campaigners in 2014 supported the Government’s white paper.

The Convener

No? That is a shock to me.

Dr Renwick

We formulated and developed the proposal for double referendum requirements, including in discussion with the Parliamentary Assembly of the Council of Europe, which adopted the proposal at the start of January in its recommendations for referendums across the board. When I am thinking about this, I am not thinking specifically about the Scottish independence referendum. However, I am very conscious that, in any particular place, the proposal will be thought about in the context of a particular referendum—and here that means the independence referendum.

I am conscious that the political implications of such a proposal are likely to be of concern to members of the committee, and it is important to make the point that, although it might appear on the surface as though requiring a two-referendum process might make things harder for the side that wants change, there are at least two reasons why that is not the case. The convener referred to the first reason. The standard argument against a two-referendum process is that it weakens the negotiating position of the people seeking change. If the UK Government knew that any proposal had to go to a second referendum, and if the proposal was not very strong, the UK Government might try to give Scotland a bad deal in the negotiations. The mandate point—if the Scottish Government had a mandate for its particular version of independence and for negotiating that particular version—is a counterpoint to that.

In addition, we have seen, through the Brexit process, that the idea that you cannot have a democratic process at the end of the negotiation of something as fundamental as either Brexit or independence does not hold up. You need to have some sort of democratic scrutiny process there, and therefore there is the danger that the other side will try to gain in the negotiations. In paragraph 42, I was just trying to counter that argument against our proposal.

The second reason, which I outlined in the final paragraphs of the evidence, is that if you have a two-referendum process, you make it much more likely that there will be a majority for change at the first referendum, because people know that there is always a second chance to vote if they do not like what they get in the end. Having a two-referendum process rather than a one-referendum process does not seem to have implications in relation to who will win. However, it does mean that you have a better democratic process.

The Convener

Does Justin Fisher want to say something about that?

Professor Fisher

Just briefly. Alan Renwick’s proposal has a lot to commend it. It is important to remember that as a country—whether we are talking about the UK, Scotland, Wales or England—we are still feeling our way on referendums. Up until 2016 we got lucky. The referendum in 1975 was supposed to settle the issue of European Economic Community membership. It manifestly failed, and so the idea of a second referendum to try to settle such an important constitutional issue such as independence or withdrawal from the European Union seems to me to be fundamentally sensible in a country that is not very experienced at running referendums.

The Convener

Let us get back into some of the technical aspects. I think that John Mason has questions about spending.

09:45  

John Mason

Yes. Professor Fisher, some of your comments about spending limits were quite strong—in fact, you said that the limits are “virtually meaningless”.

Your written evidence includes figures, and I have to say that I struggle to get my head round some of them. It refers to

“designated lead campaigns (£1,500,000); permitted participants (£150,000); nonregistered campaigns (£10,000)”.

Is your main problem the relationship between the different spending limits?

Professor Fisher

Yes. In a sense, all limits for the designated campaign are, by definition, arbitrary, but once you have settled on a figure you need to have a relative spend for the non-designated campaigns, just as we do for third-party spending in general elections.

John Mason

So you consider that the system for spending on general elections works better than the system for referendums.

Professor Fisher

Yes—without question. The lesson of 2016 is that the £7 million spending limit for the designated campaigns was dwarfed by the amount of spending on each side.

John Mason

How will we fix that?

Professor Fisher

There are two ways to do that: reduce the amount of the permissible spending for the registered participants that is non-designated, and significantly reduce the spending for non-registered participants. The clear lesson from 2016 is that those who wish to exploit loopholes in the spending limits will do so.

John Mason

Yes. I was involved in a group as part of the yes campaign in 2014. I was struck by the fact that salaries are not included in the spending limits—I think that that issue also appears in your written paper. There is the question about having to include the cost of any work that is contracted out but not having to include the cost of a staff member who someone already employs. If there is a gap between the spend and the limit, maybe it is the spend that is artificially low in some cases.

Professor Fisher

I think that the staff issue is an anomaly. The issue is the communication with voters through campaign materials, whether those be hard copy or digital—that is where the real abuse lies and where we saw a significant problem in 2016.

We could take the view that there should be no spending limits, but, if we do that, all bets would be off. For the past 20 years, we have had a principle of setting spending limits at national level. If we have such limits, we need to ensure that the designated campaign in a referendum or the candidate in a general election has primacy. We have had in place that principle for the candidate ever since the 1880s. Up until the 1990s, people who were not candidates could spend only £5. That limit was tested in the European Court. The figure was subsequently increased to £500.

It strikes me that, in referendums, the relative maximum spend for non-designated spend is out of whack, and that is particularly acute in the Scottish case where the non-registered campaign limit of £10,000 is the same as the limit that is in place for a UK referendum.

John Mason

Despite the fact that it is a smaller area.

Professor Fisher

Yes, despite the fact that the electorate is much smaller. In relative terms, £10,000 spend for 1,000 voters and £1 million for 500,000 voters is considerably greater proportionately than is £10,000 spend for 7 million voters.

John Mason

You say that spending on each side should be as equitable as possible. In one sense, I get that. On the other hand, am I right in saying that the remain side spent a lot more than the leave side but the leave side still won? The amount of money that you spend does not necessarily equate to getting the result that you want.

Professor Fisher

No. The amount that is spent does not tell you anything about the quality of the campaign. Vast sums of money could be spent on a terrible campaign. Indeed, the remain campaign did precisely that, as did the yes to AV campaign in 2011. Having the money does not mean that it is spent properly. You cannot legislate for that. However, you can legislate to set upper limits on how much should be spent. Indeed, the referendum legislation goes further than the election legislation in trying to ensure equity by having an element of public funding, to ensure that both sides are adequately funded. That does not exist for general elections

John Mason

Would you want that to be in the primary legislation rather than in secondary legislation?

Professor Fisher

I think that it would be sensible to legislate for that and update it as and when required.

John Mason

Does Dr Renwick have anything to say about that?

Dr Renwick

No. Justin Fisher is very much the expert on that. The one point that I would make is that the bill does not, of course, allow for public funding for designated campaigners in Scotland.

John Mason

I think that somebody else will come on to public funding. Is that right, convener?

The Convener

Yes.

I want to dig down a bit more on the spending issue. From what I understand, the Scottish context in 2014 was a bit different from the context that we have just been hearing about with regard to what happened in the 2016 referendum. If we look at the Electoral Commission figures for spending during the 2014 referendum campaign, which I have in front of me, we can see that both sides spent around 95 per cent of the limit and the combined spend of all other campaigners was less than half of that on the no side and around a quarter of that on the yes side. In the Scottish context, it is therefore not clear to me what the concern about a

“risk of multiple nonregistered campaigns challenging the primacy”

of a designated campaign is based on, because, if we reflect back on past practice here, we see that that did not happen.

Professor Fisher

You could take that view, but I would counter that by saying that the cat is now out of the bag about how to get round the legislation. That was very clearly demonstrated in the 2016 referendum. Scotland may be different, but that may be an anomaly in comparing the two referendums.

It seems to me that there could be any number of issues on which there is a referendum in Scotland and the sort of behaviour that we saw in the 2016 referendum campaign could be attracted. It would be folly not to learn from the difficulties that were experienced at the UK level just a few years ago.

The Convener

Did you look at the Electoral Commission figures for Scotland?

Professor Fisher

Only in respect of the number of non-registered participants.

The Convener

But not the detailed spending pattern.

Professor Fisher

No. My evidence is based on a large study that I undertook for the Electoral Commission on how things worked for campaigners. That seemed to me to be particularly pertinent.

The Convener

Okay. Does John Mason have any other questions?

John Mason

Yes—just on a minor point to finish off. People do not have to produce receipts for spending under £200. Is that a minor or a major problem?

Professor Fisher

I think that it is a minor problem. There is a real danger in overregulating what is essentially a voluntary activity. If very small receipts have to be declared, people will be driven out of politics, and the costs will be increased substantially, because much more would need to be spent on compliance. A level has to be set, and £200 seems appropriate.

John Mason

That is great. Thanks very much.

The Convener

Alexander Burnett has a question on Electoral Commission issues.

Alexander Burnett (Aberdeenshire West) (Con)

My question is about your views on the Electoral Commission’s role in the question testing for referendums—particularly Dr Renwick’s point in his submission that

“Question testing should take place even when a question has previously been tested or proposed by the Commission.”

Dr Renwick

Absolutely. I think that the process should always be applied, irrespective of whether the question has been tested before. As I and several others have pointed out in written evidence to the committee, preceding the Brexit referendum, the Electoral Commission looked at the issue twice. There was a private member’s bill previously; the second time round, the commission produced stronger recommendations that led to a change in the question.

It is clear that circumstances change, and the degree to which a question meets the intelligibility test may also change. Fundamentally, that has to be allowed for.

I go back to comments that we both made earlier. The only impartial reason that I can see for not having the Electoral Commission test questions is that that would speed things up, as it takes 10 to 12 weeks to do that. However, speeding things up is not a virtue in referendums, so I do not think that that is a good reason for not testing questions.

Professor Fisher

I completely agree with Alan Renwick on that issue. It is pertinent to note that polling companies constantly review their questions because the questions rapidly go out of date in respect of people’s understanding of what they mean. For something as important as a referendum, and given that referendums do not take place regularly but are one-off events, it would be sensible to question test on every occasion.

Alexander Burnett

Thank you—that is very clear.

James Kelly (Glasgow) (Lab)

Professor Fisher, you said earlier that it is important to get agreement on the questions. Aside from the importance of the process being robust, do you agree that the wording of section 3(7), which excludes the role of the Electoral Commission if the questions have already been used in a previous referendum, could undermine confidence in the questions if there is not broad agreement and consensus on them?

Professor Fisher

Going back to my previous response, I think that excluding the Electoral Commission from the process would be inadvisable, so I would not recommend that at all. It may well reduce confidence—however, that is pure speculation. On whether the question remains fit for purpose, it seems to be a leap of faith to say that, if it worked the last time, it must work this time. Would a time limit between referendums need to be set to allow for such a decision to be made? The provisions seem a little loose, and excluding the Electoral Commission would remove an important part of the referendum process.

Gordon MacDonald

Alan Renwick, in your written evidence you suggest that the 28-day purdah period be changed

“to cover the whole of the natural campaign period”,

although certain announcements would continue during that period. Currently, the 28-day rule on purdah is clear and is understood by most voters. Would this change create confusion?

Dr Renwick

No. Why do you think it might create confusion?

Gordon MacDonald

Because, at the moment, there is a cut-off point after which, in theory, nothing should be published by the Government within the 28-day period. You are suggesting a “long and thin” model whereby some announcements could continue over the whole referendum period.

Dr Renwick

There should still be a cut-off point—it is just that it should cover the whole referendum period. For the 2016 referendum, for example, the 28-day period clearly covered the final four weeks of the campaign but the referendum covered a 10-week period, and there was much active campaigning going on during those first six weeks. It would make no sense at all to have different periods for these things. That would create confusion.

We have a situation whereby a regulated campaigner would incur expenses for making a claim but the Government could make a claim that was not regulated at all during the initial period of the campaign, and that makes no sense at all. Whatever the actual referendum period is, that should be the period to which the restriction on publications by Governments should apply.

Gordon MacDonald

If purdah covered the whole period, what impact would that have on normal, day-to-day Government business?

Dr Renwick

If the scope of the provision were unchanged, the danger—particularly for a broad topic such as independence or Brexit—is that it would impinge on a Government’s normal business. That is why you need to not just lengthen the period but narrow the scope so that it covers only communications that promote a particular outcome in the referendum. I know that the Electoral Commission has been working on detailed proposals on exactly how to define that scope. In essence, it would be based on the sorts of communication that count towards expenses for registered campaigners.

10:00  

Gordon MacDonald

Given that the 2000 act will still apply across the rest of the UK when the bill goes through, how would the UK Government abide by that if it had an interest in a referendum that was taking place in Scotland?

Dr Renwick

I presume that, if it was a referendum that was subject to a section 30 order, there would be something similar to the Edinburgh agreement to get that agreed between the two Governments. I confess that I have not thought through what would happen if a referendum was not subject to a section 30 order and the UK Government was interfering in things. Clearly, that would create difficulties.

Gordon MacDonald

That is why I asked the question. It would create difficulties. It would create an uneven playing field for the two Governments. Is there any way in which we can resolve matters? Surely, the easiest way to do so would be to replicate what currently happens under the 2000 act.

Dr Renwick

The danger of doing that is that we would be allowing the tail to wag the dog. It is not obvious why the UK Government would intervene in a referendum that was not subject to a section 30 order.

I agree that there is a potential difficulty here, but the bill should be trying to regulate referendums in Scotland as well as possible. The current provisions regarding publications by Governments are just not working—it is manifest that they did not work in 2016—and they should not be allowed to stand. Obviously, I am arguing—along with the Electoral Commission and many other people—that PPERA should be changed, too.

Gordon MacDonald

Has the UK Government given any indication that it intends to look at the 2000 act?

Dr Renwick

It has indicated that it is looking at aspects of the 2000 act, particularly in relation to digital campaigning. There are many people in the UK Parliament who think that such provision ought to be included in that review, but I cannot comment on what the current UK Government thinks.

Professor Fisher

I must admit that I have never been entirely comfortable with the idea of excluding Government from the referendum process. The provision in PPERA was introduced largely because of the concerns of a member of the then Neill committee about the conduct of the 1975 referendum. In one sense, it seems slightly perverse that a Government that wishes to propose a referendum should not be able to have any say in it.

It is also worth saying that, in the 2016 referendum, the Government complied entirely with the law when it came to distributing the booklet—I think that I was the only person in the UK who did not receive one—but there was still a great deal of controversy about that. The period in which Governments can make any claims is set. By definition, that is slightly arbitrary. Wherever that time point is set, Government will push up against it—of course, it has an interest in the outcome.

There is a significant regulatory challenge. You outline clearly the one that would be posed by a UK Government intervening in a Scottish referendum, albeit that, politically, it would seem very unwise for it to do so. It is an extraordinarily difficult area on which to legislate, and I would be cautious about excluding Government from certain areas of business during a referendum campaign for what is quite a substantial period of time. I do not have a neat answer to your question, but it raises the issue of being careful what we wish for.

The Convener

Patrick, I think that you want to ask questions about a national database—is that right?

Patrick Harvie

Yes, thank you, convener. In their submissions, Dr Renwick and Professor Fisher both talk about establishing a national database to make it easier for campaign organisations—in particular, smaller, less well-resourced campaign organisations—to check the permissibility of donors. Have you thought of alternative ways of achieving the objective of removing that barrier for campaign organisations? Have you considered any possible unintended consequences of the database approach? I am thinking of practical consequences, such as a possible mismatch between who was on the national database and who was on the locally held electoral register, or political consequences.

Over the past decade or so, we have seen two or three attempts to establish national databases for one purpose or another—most recently, two years ago, when the Scottish Government abandoned the proposal to turn the national health service central register into a national database. Whether the concerns are legitimate or illegitimate, there are real problems of perception about how national databases potentially change the relationship between citizens and the state. Given that trust is really important in a democratic exercise, is there a danger that the proposal will be interpreted in a way that will change people’s level of trust in the system?

Professor Fisher

I accept that there is a danger of that. As a minimum, you could ensure that all local authorities keep data in the same format, to enable the merging of that data. We are talking not about holding dual databases but about a system whereby a newly established referendum campaign will not be required to go round every local authority in the country in which the referendum is being held.

Patrick Harvie

Would having local authorities use the same format be reasonably easily achieved?

Professor Fisher

It would mark a fundamental shift from local authorities effectively doing what they like to the Electoral Commission running elections more centrally. It would require a shift, and there has been some resistance to that, but quite why there is such resistance is beyond me. It does not seem unreasonable to insist that the registers, even if they are kept at local authority level, are all in the same format, because they are critical to compliance in relation to donations. The local authority registration existed before the compliance requirements in respect of donations were introduced by PPERA. It seems to me that one piece of legislation has not kept up with the other.

Patrick Harvie

Dr Renwick, do you have anything to add?

Dr Renwick

No.

Patrick Harvie

Related to the notion of compliance and the need to check the acceptability of donations are the recent allegations that were made against the Brexit Party about the way in which it was raising funds from smaller donations that were below a threshold and about whether they might have been coming from overseas donors. Is there a case for our going further when questioning which donations a campaign body is responsible for and for our checking and reporting on where they come from?

Professor Fisher

It is a question of threshold. The essential principle is that donations should be made by persons who are registered to vote in the United Kingdom. At present, there is a threshold that means that not all donations need to be checked. In the light of the accusations against one particular party, there may be a case for lowering that threshold, but I go back to the point that I made earlier in respect of receipts. There is a balance to be struck between effective regulation and overregulation, which would need to be discussed between all the parties.

Patrick Harvie

Thank you.

James Kelly

I have one additional question, which is on digital imprints. One of the big changes in campaigning in recent years has been the use of technology—particularly social media, which in any campaign can give rise to issues about how its use is controlled and regulated and how spending on it is monitored. Are there any experiences relating to digital imprints and digital campaigning from referendums internationally that we can look at, which could be used to strengthen certain provisions of the bill?

Dr Renwick

I think that digital imprints are required in New Zealand, where there have been some difficulties in working out exactly where to apply the rules and where not to apply them. In my written evidence, I raised the issue—which I think the Electoral Commission also raised in its submission—that we do not want to capture individuals who are just expressing their views on Twitter. There have been difficulties around that area in New Zealand, and it is clearly a point that needs to be thought about quite carefully.

Scotland was, of course, the first part of the UK to issue a regulation requiring digital imprints, for the 2014 referendum. That provision was widely welcomed, but the Electoral Commission concluded afterwards that there had been some problems with a lack of clarity around where the threshold should have been applied. The bill proposes a slight addition to the wording of the provision relating to that in the 2013 act, but it still does not really address the issue. It still does not make it clear that someone who is expressing a personal view and not being paid for it does not have to provide an imprint. That needs to be clarified in the bill.

Professor Fisher

As Alan Renwick has said, the need for digital imprints is quite clear, although I would demur from the Department for Digital, Culture, Media and Sport’s statement that the legislation is therefore not fit for purpose. All the empirical evidence at this stage is that the actual electoral impact of digital campaigning is somewhat overstated. That is likely to change as other campaign methods become more important.

As Alan Renwick says, it is difficult to capture things like organised Twitter campaigns, but I do not think that legislation should seek to do that, because, in many ways, it is no different from simply trying to regulate ordinary conversational campaigns. There comes a point at which we have to say, “If this is an advertisement, it should have an imprint,” but there are some things that simply cannot be regulated. You cannot regulate people chatting in a pub, and you cannot regulate people expressing a view on Twitter, even if collectively they do a lot of it.

It seems to me, therefore, that we should have digital imprints not necessarily because there is a desperate need for them now but because there will be a significant need for them in the future. Always remember that you cannot regulate every aspect of a referendum or an election.

Patrick Harvie

I am a little bit uneasy with the distinction that you have made between formal advertising and online conversation. Surely the change that social media brings about is the ability for organised funded campaign organisations to capture online and social media conversation and to use it as the platform for their message. Surely we need to think about a way of achieving the regulatory effect in that space.

Professor Fisher

How would you do that? In one sense, that is no different from a group of Liberal Democrat party members meeting in a pub, chatting with people and saying, “The Lib Dem view on this is X.” They are having a public meeting.

Online conversation seems to me to be something that goes beyond what one could reasonably regulate. You might say, for example, that any official Twitter account for Labour, the Conservatives or whoever, should be subject to regulation. It will have a digital imprint because the account says “Labour” or “Conservative” on it. What is to stop people using a fake account?

Patrick Harvie

What if social media are being used, as in recent examples, to boost massively an organisation’s false claim about Turkey’s EU membership, or the impact of EU membership on the ability to protect polar bears—claims that are very clearly organisationally derived campaign messages—and those claims are unaccountable?

Professor Fisher

I understand the dilemma, but I am not sure how different that is from any of us spreading disinformation through everyday conversation with colleagues. It is a question of scale rather than principle.

Patrick Harvie

If it is a question of scale, would it be reasonable to suggest that the threshold for regulation should be the reach of a social media account rather than whether it is social media or paid media?

10:15  

Professor Fisher

We have imprints, which have originally been on campaign materials, so that we can track and audit spending. If an organisation takes out an ad on Facebook or Twitter, there can be a digital imprint to match the spending. However, when the Labour Party, the Scottish National Party or whoever engages in a Twitter conversation, that is cost free.

Patrick Harvie

I accept that financial accountability is one aspect, but in order to achieve accountability for telling the truth, is it not also necessary to know whom a message is coming from, because that allows us to judge whether an organisation is being honest in its campaigning?

Professor Fisher

I think that you are equating official campaigns with truth telling.

Patrick Harvie

I am saying that they are not always the same—that is the problem.

Professor Fisher

I recognise the issue, but there is a danger of going down a road on which we try to regulate anything that moves. There is a point at which regulation can become ineffective if the people who are pushing social media are getting around the legislation. We would not want to create the equivalent of the Dangerous Dogs Act 1991. There is a real risk of regulation falling into disrepute if it tries to cover everything but ends up doing something very badly.

Patrick Harvie

I appreciate that the matter is difficult; I think that it needs more thought.

Dr Renwick

A lot of thought is being given to that. The Electoral Commission is working hard on the question, and the UK Cabinet Office has been thinking about it, and said under the previous Administration that it would be introducing proposals on how to do digital imprints later this year. Quite a lot of thinking is happening.

Members are right to identify that there are problems on both sides of this difficult issue. It seems to me that we do not have enough transparency. A lot of campaigning is opaque and we do not have the balance right, but exactly how to shift it is a difficult question that requires engagement with the organisations.

The Convener

I have a couple of questions for completeness, just to make sure that we cover all the ground. The Electoral Commission submission points out that the bill

“does not require campaigners to give details about what they spent money on, or when, where and how they spent it.”

It recommends amending the bill

“so that campaigners would be required to include this information in their spending returns”

on the basis that this is proportionate and

“does not impose an unreasonable burden”.

Is that a reasonable suggestion and is there an international perspective on it?

Dr Renwick

That is certainly a reasonable suggestion. The UK goes further than most countries in relation to the degree to which spending is already regulated in referendums—it is already doing better than most—but it is still not doing well enough. The Electoral Commission’s recommendations have been developed over many years: they are well thought out, and I would take them seriously.

Professor Fisher

That is not an unreasonable suggestion at all, given that the data will already have been collected by the organisations. Every organisation will have a sense of where and when it spent money, so I do not have any objection to the suggestion.

The Convener

I have a final question—again, on the Electoral Commission. It has raised concerns about allowing campaigns that spend over £250,000 up to six months to provide an auditor’s report. It points out that once it had carried out compliance checks, the information would not be publicly available until about nine months after polling day. Its view is that the information needs to be available to voters

“as soon as possible after a referendum, while it is still a live issue.”

What is your view on that?

Professor Fisher

There is always an issue about when information is published. The question of it being a live issue is important. For a referendum, however, that would be rather difficult because there would be no subsequent referendum unless Alan Renwick’s sensible proposals were introduced.

I can see why there would be an argument for shortening the period, but I do not have a firm view on how long it should be. However, we need to recognise that once a vote is cast in a referendum, the point at which there is moral outrage might be two months or it might be nine months later, and will not change the outcome unless there was an illegal act.

The Convener

The horse will already have bolted.

Professor Fisher

Quite.

Dr Renwick

The independent commission on referendums took evidence on the issue and came to the conclusion that three months would be a reasonable cut-off date.

Professor Fisher

It is worth adding that the organisations involved might have ceased to function nine months after the referendum. Therefore, it would be sensible to shorten the period, so that they do not incur further cost unnecessarily.

Alexander Burnett

I have a question about thresholds, which are not really touched on in any of the submissions. Petition PE01754, which has been lodged with Parliament, suggests that a two thirds majority should be required for constitutional change to be agreed to, as is the norm for many organisations, from sports clubs to political parties. Do you have any views on that?

Dr Renwick

That would be a very bad idea. To have a majority vote for a proposition and then be told that that majority does not have any standing inflames passions and does no good to the subsequent political processes. Very few countries have supermajority requirements for referendums. The only such referendums that I am aware of have been in Canadian provinces.

Quite a few places have turnout thresholds or what we call electorate thresholds, as was used in Scotland in 1979. 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. Electorate thresholds—in which the percentage that must vote in favour of a proposal is set; it could be 40 per cent, for example—do not have such clear theoretical problems. However, it seems to me that use of an electorate threshold was discredited by the 1979 experience, so you would be a brave politician to recommend introducing one in Scotland.

Generally, my view is, as I have indicated, that a referendum should be part of a multistage decision-making process; it should not be a one-stop way of getting to a decision on a major issue. The safeguards should be in the rest of the process—not in any superwacky threshold on the referendum vote itself. Having in place such things as proper parliamentary scrutiny and a citizens assembly process ensures a good democratic process, and if the majority wants change at the end of that detailed process, that would be the democratic decision.

Professor Fisher

I would not put it quite as forcefully as that. I see a case for a supermajority for fundamental constitutional change. However, I think that the dual referendum proposal that Alan Renwick makes is a better safeguard and is more defensible. Of course, if people know the rules beforehand, a supermajority is, arguably, defensible. However, on balance, the dual process is a better one.

The Convener

This session, which has been quite long, has been more than useful, so I am grateful to the witnesses for coming along to provide evidence, which saw us move from supermajority processes to superwacky processes—which is now a new part of our lexicon, as far as the committee’s report is concerned.

We will have a brief suspension before we move to the next panel.

10:24 Meeting suspended.  

10:30 On resuming—  

The Convener

I welcome our second panel. Michael Clancy is the director of law reform at the Law Society of Scotland, and Jess Sargeant is a researcher at the Institute for Government. Thank you both very much for your helpful written submissions. We will go straight to questions.

Angela Constance

Good morning, panel. You obviously heard the earlier evidence session. I have a general question about your overall assessment of the bill. An apparent theme in all the evidence that we have received is that the bill, although it is based on previous good practice, could be a wee bit more forward looking in some areas. Do you agree or disagree? Do you have any comments in that regard?

Jess Sargeant (Institute for Government)

I agree with that general assessment. The purpose behind the bill is very good. At the moment, Scotland does not have standing legislation that would apply to future referendums; legislation was applied ad hoc for the 2014 referendum. It is important to have standing legislation, so that the rules are known in advance and are not developed for each separate referendum.

As you have mentioned, the bill is based on the UK’s regulatory framework, which was introduced in 2000. Obviously, some updating of that legislation needs to be done, and the bill incorporates a lot of the changes that have been applied to UK referendums since 2000. That is positive.

There is scope for further updates. However, as the previous panel mentioned, a lot of the legislative solutions to regulating the new types of campaigning are not obvious yet. Unlike PPERA—the UK’s regulatory framework, which has been unamended since 2000—the bill needs to become living legislation, with opportunities to amend it when legislative solutions need to be made available.

As we say in our submission, our main concerns are the regulation-making powers in the bill and the fact that the referendum question and period would be specified in subordinate legislation rather than in primary legislation. Although there might be reasons for doing that, it is important that any future referendum and its result command maximum legitimacy. Therefore, there should be maximum scrutiny of that referendum proposal, so we propose that those matters be covered in primary rather than secondary legislation.

Michael Clancy (Law Society of Scotland)

The committee can be confident that the Law Society shares many of those views. As we say in our submission, the bill is a good idea. We say that the policy objectives that have been set by the Government would be met by the bill and

“We agree that the provision of a standing legal framework will enable future referendums to be legislated on in a consistent and timely manner.”

However, there are concerns about the proposed regulation-making powers and the powers for the Electoral Commission. Also, with a view to the future, we think that lessons could be learned from what has transpired in relation to the European Union referendum. In particular, the views of the Electoral Commission and the Information Commissioner’s Office, and some of the investigations of Westminster committees, should be drawn on.

Angela Constance

I am interested in Jess Sargeant’s comments about making the bill a “living” bill. Obviously, there are opportunities to amend legislation once it has been passed. That tends to be done through regulation-making powers. Do you have any thoughts on how to keep standing legislation up to date with best practice?

Jess Sargeant

That is difficult, because it often requires legislative time. One of the reasons why the UK framework has not kept up in that way is that the Government has not been prepared to give time to amend it. The bill contains a regulation-making power for ministers to update regulation on the basis of Electoral Commission recommendations. That is how the Scottish Government has approached the problem of being able to update the legislation. In Westminster, referendums usually require primary legislation. If the regulation-making powers were taken out of the bill, the opportunity to pass primary legislation to set the question and the referendum period every time there was a referendum would provide a legislative vehicle through which to make updates.

Michael Clancy

As a coda to that, I say that the power to modify in section 37 has provisions for Scottish ministers to make regulations

“in consequence of or in connection with any modification (or proposed modification) of any other enactment relating to ... the conduct of referendums ... elections”

and the “entitlement to vote”.

Clearly, that is an attempt to future proof but—as we heard earlier about concerns regarding the phraseology or proposed modification—that stretches future proofing to not just what has happened but to what is perceived or imagined might happen at some point. An amber light should be placed there and we should proceed with caution. As Jess Sargeant mentioned, that provision is supplemented by giving

“effect to recommendations of the Electoral Commission”.

If we flip to section 2, we see that it will allow regulations under the eventual act to make “incidental, supplementary, consequential, transitional” and all the other usual elements of modification, and to “modify any enactment”. In our evidence, we highlight that that does not specify the bill, but any enactment would include that element, once it is enacted. Therefore, there are two provisions that address potential modification of the legislation.

Angela Constance

Okay. Colleagues will come to the question how we balance the ability to future proof legislation and the appropriate role of Parliament.

I turn your attention to our discussion with the first panel about timing. When we look at what has gone before, there has been variation in practice in relation to time between legislation passing and polling day, and there has been variation in practice in terms of the referendum period. There has been discussion about whether we should or could vary the length of the referendum period, depending on what the referendum is about. What are your thoughts on the issues of timings? What are the pros and cons in respect of minimum and maximum periods for the controlled part of the campaign?

Jess Sargeant

As we highlight in our evidence, a problem is that the bill does not have a minimum specified period between the designation of referendum campaigners and polling day. That means that the period could be incredibly short and that the lead designated campaigners would not be able to use their entitlements, such as a higher spending limit, for long, which would have massive impacts on the ability of the campaigners to make their cases and on public debates about the issue. That needs to be rectified in the bill. The Electoral Commission recommends that a minimum of 10 weeks be stated in the bill. That is my primary issue with the bill.

Angela Constance

What is your view about a minimum period? Should it be four weeks or 10 weeks?

Jess Sargeant

I would take the Electoral Commission’s advice that the minimum period should be 10 weeks. That has been practised for most UK referendums. As you mentioned, some periods have been longer but a minimum of 10 weeks is a good period of time.

With regard to the amount of time between passing the legislation and polling day, referendums should not be rushed. The Electoral Commission recommends that legislation should be clear

“at least six months before it is due to be ... complied with”.

If it related to the regulation of campaigners or the designation process, that would mean before the designation process began, which would be about nine months before the referendum. There is not a magic number. The Electoral Commission has a lot of experience of running referendums and I would be keen to listen to its recommendations.

I again make the point that referendums have huge potential to change the future of the country, as we are seeing right now, so maximum time should be given to make sure that they are run correctly.

Angela Constance

Thank you. Does Mr Clancy have anything to add?

Michael Clancy

We made no particular comment about referendum periods in our submission. I would leave it to the experts.

The Convener

I asked the first panel about the minimum period of at least six months between the referendum legislation coming into force and its being implemented. The distinction is that what is being discussed now is the framework legislation, which produces rules and regulations about things, such as spending, and covers all the technical aspects. If the Government has it right—and that is up to the committee to determine in this process—and the bill were to be in place by the end of the year and then there was a referendum, of whatever form, nine months or a year after that, would the framework legislation provide enough of the bedrock for that six-month rule to be the process for the future?

Jess Sargeant

The Electoral Commission’s recommendation is partly so that people who are required to regulate campaigners or hold the poll are aware of the legislation that they are required to comply with. Another element is public debate and discourse, because the public need time to prepare to for a referendum. Campaign groups need time to decide whether they want to apply for designation as lead campaigners to help to organise the best debate possible. Those are some reasons for its recommendations, and there is also the case for a long period of time between a proposal for a referendum being decided and polling day.

Michael Clancy

Under the bill, such a referendum could be made available by regulations under the affirmative procedure, so we would be talking about a period of 40 days, which seems quite a short period of time for the idea to be out there. We must be very careful to ensure that there is sufficient time for people to become acquainted with it. As Jess Sargeant has indicated, the Electoral Commission has views on the issue, which we would not demur from.

The Convener

That takes us neatly to a question from Adam Tomkins.

Adam Tomkins

Good morning. Section 1 would, if enacted, confer on the Scottish ministers the power to provide for referendums in Scotland by regulations. What are your views on that power?

Michael Clancy

As currently framed, that power is an inappropriate way to proceed. We have indicated in our commentary on section 1—combining it with section 3, as there is a measure of crossover—that legislation setting the date for the referendum and the question or questions to be asked 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. As the phraseology “super-affirmative procedure” is bandied about, I put it on the record that the Scottish Parliament’s provisions for the procedure mean that there has to be pre-legislative scrutiny on the draft, a formal consultation on the draft order and approval in the chamber. The issue crops up occasionally.

10:45  

It was mentioned this morning that subordinate legislation is not of sufficient stature for great questions about a country. We can debate that back and forth, but the idea that statutory instruments cannot be amended is a significant feature here, which is why we draw attention in our submission to the provisions in legislation where statutory instruments can be amended—namely, the Census Act 1920 and the Civil Contingencies Act 2004. Therefore, the provisions to make amendments have to be built into the bill that would allow for such regulations to be made.

Again, if the committee were to choose to support the super-affirmative procedure, we would strongly recommend that the approach includes the capacity for amendments to be made to that subordinate legislation during its passage.

Jess Sargeant

I agree with most of those comments. In our evidence, we propose that any referendum question should be in primary rather than secondary legislation. That, in part, is to allow it to go through the full scrutiny process of primary legislation, rather than the process for secondary legislation, which is slightly less rigorous. It is also because, if the statutory instrument were unamendable, as Michael Clancy mentioned, the question of whether there should be a referendum is conflated with what the question for the referendum should be.

The Electoral Commission will comment on the intelligibility of the referendum question, although there is a slight exception for questions that have been tested before, which I imagine we will talk about later. However, the commission will not comment on whether it is the right question. That job should be for the Parliament, but approving the question via a statutory instrument would not give Parliament the opportunity to look at that.

MSPs might have to choose between passing a question that they think is sub-optimal because they want to hold a referendum, and not having a referendum at all.

Adam Tomkins

Thank you very much—that is very helpful. The IFG’s view is not that section 1 should be amended so that we use super-affirmative procedures, which is a suggestion made by the Law Society of Scotland, but that section 1 should be removed, so that future referendums require primary legislation. Have I got that right? I want that point to be clear.

Jess Sargeant

Yes.

John Mason

You may have heard my questions to members of the previous panel. Do you share their concerns about the whole area of spending limits? As I have mentioned, I do not think that a lot of people understand the terms “designated lead campaigns”, which are allowed to spend £1.5 million, “permitted participants”, who are allowed to spend £150,000, and “non-registered campaigns”, which are allowed to spend £10,000. Does that concern you? Should we be doing something about that?

Jess Sargeant

We have not looked into the detail of that, which I know Justin Fisher has done. The previous panellists and the Electoral Commission are those who have had the experience of that.

Michael Clancy

I suppose that we are in the same position. We highlight in our submission that the Venice commission “Code of Good Practice on Referendums” states that

“funding must be transparent, particularly when it comes to campaign accounts.”

Again, there are experts in that field—we heard from one of them this morning—who are better placed to detail precisely what the figures, the accounting position and relative quotient should be.

John Mason

Jess Sargeant has commented on the idea of public funding, so I want to ask about that. Perhaps you could explain to us why you think that public funding might be required. It appears that, for the previous European and Scottish referenda, sufficient money was raised on both sides, so there would not be a need for public funding.

Jess Sargeant

You are right to say that, in the Scottish independence and EU referendums, the campaigns were able to raise sufficient funds. However, the UK regulatory framework makes provision for public funding for referendum campaigns, so the designated campaigns received such funding.

Although, inevitably, the Referendums (Scotland) Bill is being talked about in the context of possible referendums that might happen in the short term, the bill will cover any referendum that is held in the future in Scotland. Such referendums might not attract levels of donations that are high as those that, say, an independence referendum would attract. That would be particularly problematic if a lot of business groups and political parties were all aligned to one side in a referendum, in which case the other side might struggle to raise funds and put its case to the public.

John Mason

Was that not the case in the European referendum? Most businesses and unions were on the one side.

Jess Sargeant

I am not saying that that situation is inevitable in all circumstances. The reason why the UK framework contains provisions for public funding goes back to when the Committee on Standards in Public Life was first asked to look at the issue in 1999. It drew experience from the Welsh referendum in 1997, in which one side struggled to attract significant funding. The committee, campaigners and the public felt that that had a real impact on debate, in that people were not able to hear both sides of the argument and consider the question. As we know, that referendum had quite a low turnout, which is perhaps a reflection of the question and the demand for the referendum, but I think that, in part, it was a question of the quality of debate during the referendum.

We do not make a firm recommendation that we should definitely have public funding; that is for Scotland to decide. I note that the decision not to have public funding for the 2014 referendum followed a Scottish Government consultation that found that the public did not want it. We need to bear in mind that the bill will cover all future referendums, and we might want to think about providing for that eventuality.

John Mason

I understand that argument. However, I fear that there is a lack of confidence in politics among the public. I was at a by-election the other week, and people were questioning whether any of my expenses were covered by taxpayers’ money. Obviously, they did not want them to be, and I was able to say that, basically, all the money had been donated by me. Would the downside of allowing public funding be that it would lead to a negative reaction in the public, who would say that taxpayers’ money was going to a political party or campaign?

Jess Sargeant

I totally understand that argument. That is the risk with policy proposals such as those relating to public funding for referendum campaigns. However, that argument needs to be balanced against the potential for having a poor quality of debate in future referendums. As I said, we do not come to a firm view on that matter. It is one of the notable differences between the bill and the UK regulatory framework, so it is worth commenting on and thinking about.

John Mason

Would a compromise position be that the assumption should be that public money would not normally be used, but if it became apparent that one side was not able to put its argument, allowing public funding would become the exception or fallback position?

Jess Sargeant

That is one possible approach. The slight difficulty with it is the question of who would decide whether such funding was allocated, and whether the decision could be perceived as having a political purpose. It is a difficult issue. I do not propose to come down firmly on one side or the other, but it is worth talking about.

James Kelly

One of the big changes in recent years has been the growth in online campaigning. The bill makes provision for digital imprints to be used for appropriate online campaigning. There are challenges in understanding what requires a digital imprint and in monitoring that properly, and it is important that things do not get out of control. What do you see as appropriate online uses that require digital imprints during a referendum?

Jess Sargeant

At the risk of repeating some of what has been said, I think that there is a distinction to be made between paid political advertising and organic advertising. It is clear to me that online advertising that has been paid for—in parallel with published advertising that has been paid for—should definitely contain an imprint.

I think that organic advertising that is shared peer to peer on social media should not require an imprint. As the Electoral Commission said, there is still some thought to be given to the issue, and there are difficult trade-offs to be made about the regulatory burden. As was mentioned by the first panel, the Scottish 2014 referendum was the first referendum in which imprints were applied to digital materials, and we should learn as many lessons from that as we can.

Michael Clancy

In our submission, we highlight the report of the UK Parliament’s Digital, Culture, Media and Sport Committee on online harms. In that report, the committee makes various recommendations to the UK Government, which so far have not been taken up, about making sure that a category relating to digital spending on campaigns is introduced and recommending that information about all political advertising material should be searchable and public.

This committee heard evidence from the first panel that the UK Government has indicated that it will make a technical proposal for a regime on digital imprints later this year. That is clearly gathering a head of steam and we recommend that the Scottish Government takes it into account.

The Convener

Patrick Harvie, you are interested in database issues.

Patrick Harvie

I think that both witnesses were in the room when we were discussing the issue with the previous panel, but the concerns that I have with the idea of a national database are partly practical—is there is a danger that there could be a mismatch between a national database and the locally held register, and whether there could be any practical consequences of that. My concerns are also partly political—what risk to the perception of democracy would we be running by creating a national database, given the concerns and controversies that have arisen since the national identity database, the NHS central register and the proposals from the Scottish Government regarding the national entitlement card? Some of those schemes have been very controversial, so would this scheme risk running into the same issues of perception?

Michael Clancy

Inevitably, there will be people who will contest any change in that area, particularly if it touches on the exposure of details about individuals. The important thing is that, at the moment, we are talking in theory without any concrete proposal, so if one was going to say anything to those who are going to create concrete proposals, it would be to make sure that a proper balance is set between protecting data and, at the same time, allowing scrutiny and accountability. Beyond that, it is quite difficult to say much more.

Patrick Harvie

Presumably, the concern about the objective of enabling campaign organisations to check the permissibility of donations is one that we all share. Do either of you have suggestions about other ways of achieving that objective that do not necessarily go down the route of a national database? Is that something that you have looked at?

Jess Sargeant

Unfortunately, it is not something that we have particularly looked at, so I will defer to the experts on that one.

Patrick Harvie

Not to worry. Thank you.

Alexander Burnett

I have a question about the role of the Electoral Commission in relation to question testing for referendums. Both the Law Society of Scotland and the IFG have expressed concerns about that. The IFG specifically talked about the proposed exemption and said that

“there is only one circumstance in which this exemption would apply”,

that being if the 2014 independence referendum question were asked again. The exemption would seem completely unnecessary, given that the bill is meant only to cover devolved issues. Jess Sargeant, would you like to elaborate on your views on that provision?

Jess Sargeant

Obviously, question testing by the Electoral Commission comes with cost and time implications, but it is considered to be one of the most rigorous processes of question testing in the world. From all previous referendums, we can say that, although people might have problems with the reason for the question being asked, everyone has faith that the question that they are being asked is not biased and is fair—there is consent between both sides on that. There may be reasons for not testing again, such as timing or cost, but I think that they are trumped by the legitimacy aspect of testing.

11:00  

There is no reason why a question that has been tested before cannot be further improved. More experience of the question or debate might mean that new issues come to light. It is important to test the question in the current context, because things might have changed. Question testing takes about 12 weeks and the cost is quite marginal relative to the whole cost of a referendum. The reasons for exempting certain questions are not strong enough to justify the inclusion of the exemption.

Michael Clancy

We have criticised section 3(7), which provides that the section would not apply to involvement of the Electoral Commission

“in relation to a question or statement if the Electoral Commission have—

(a) previously published a report setting out their views as to the intelligibility of the question or statement,

or

(b) recommended the wording of the question or statement.”

Again, it is a question of context. Is a question set once a question set for ever? Have conditions changed? We think that questions should be scrutinised in the light of the conditions at the time when it is proposed to pose the question.

The Electoral Commission uses stronger language:

“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”.

The commission is the expert in this field and we defer to it.

Jess Sargeant

A live example of a question being improved is the one that was initially proposed in the European Union Referendum Bill in 2015. It had been previously recommended by the Electoral Commission, based on question testing of a private member’s bill. The question was:

“Should the UK remain a member of the European Union, yes or no?”

Although the question had already been tested, the Electoral Commission tested it again. In that process, it found that some campaigners had concerns about “remain” being in the question and they recommended that the word be changed to the “remain/leave” format that we ended up with. There are opportunities for further improvement, and something that looks like an attempt to evade that could be particularly problematic for a future referendum.

The Convener

The Electoral Commission suggested the question that was used in 2014.

Jess Sargeant

Yes—that is the point.

The Convener

If the Electoral Commission were to test that question, would you expect that the process would look at the circumstances, including the fact that people in Scotland are familiar with the question and that it is regularly used in polls? Given that backdrop, would that be part of the testing? To introduce something different now might confuse people. Obviously, I will put that question to the commission as well.

Jess Sargeant

I would certainly expect the commission to do that. Part of its question-testing process is to assess intelligibility, which includes putting the question in front of people and getting them to vote. The process is all about whether people understand the question that they are being asked and give the answer that they want to give to indicate their preferences. The commission does that by testing a variety of questions with people. If its evidence showed that people were confused by a referendum question that asked the same question, in essence, as the 2014 referendum question but was worded differently, it might recommend that the same question be used.

Michael Clancy

I will wait to find out what the Electoral Commission says in answer to that question.

Gordon MacDonald

Over the past 20 years, the Political Parties, Elections and Referendums Act 2000 has been in place and we have had three referenda with a 28-day purdah period in place. What is your view on the suggestion of a longer purdah period?

Jess Sargeant

The recommendation of the Electoral Commission and the independent commission on referendums is that the purdah period should be extended to cover the whole of the referendum period rather than just the last 28 days. The IFG does not have an institutional view on that.

There is a slight added complexity when two Governments are involved in referendums. There would need to be an agreement if the purdah period were extended by one Government, as it is likely that you would also want that to apply to the other Government as well. Obviously, the difficulty is that Scottish law could not bind the UK Government, so it would have to be in the form of some other agreement.

As I say, the IFG does not have an institutional view, but an extension of the purdah period has certainly been recommended by people who have looked at this quite thoroughly.

Michael Clancy

We have not taken a view on the purdah period at all.

Gordon MacDonald

Is that because you are broadly satisfied with the existing rules?

Michael Clancy

No, it is because we have not considered it as being an issue.

Jess Sargeant

The Electoral Commission and the independent commission on referendums recommended that the period should be not only lengthened but narrowed in scope. At the moment, the purdah period applies to all publications relating to the referendum which, for a functioning Government, could be difficult to sustain for a longer period of time. You would need to look at both those recommendations and generally review the purpose of the period and whether it is doing exactly what it was intended to do, which is ultimately to prevent Governments from using public funding to intervene in referendum campaigns.

I suggest that the committee works with the Electoral Commission—essentially, with the experts—to see how that might best be achieved.

Gordon MacDonald

Having that guidance in place, you said that there would need to be some form of agreement between the two Governments in any referendum where there was interest from both parties. What if that agreement was not forthcoming?

Jess Sargeant

That is a difficult question and it is not one that I have an answer to. I would hope that in good faith, there would be some sort of agreement. For example, in the 2011 Welsh referendum, the Electoral Commission asked the Welsh Government and the UK Government to extend the 28-day purdah period to cover the whole of the referendum period. The Welsh Government did that; the UK Government did not but it agreed to remain neutral and it did not take a position in the campaign, so there are alternatives. Agreement might be slightly more difficult in other contexts but certainly, in the case of a second independence referendum, some form of agreement would need to be discussed as part of the negotiations on the process.

Gordon MacDonald

Okay.

The Convener

I thank our witnesses for coming along today and providing us with some useful evidence.

11:07 Meeting continued in private until 11:43.  

The Convener

The last item on our agenda is evidence on the Referendums (Scotland) Bill. I welcome Dr Theresa Reidy, University College Cork; Dr Andrew Mycock, reader, University of Huddersfield; Professor Chris Carman, Stevenson Trust for Citizenship; and Professor Toby James, professor of politics and public policy, University of East Anglia. I thank you all for your submissions. We will go straight to questions.

The Scottish Government officials explained to us that the intention of the bill 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.”—[Official Report, Finance and Constitution Committee, 26 June 2019; c 26.]

To what extent is there sufficient flexibility in the bill to allow for different referendums? That is a nice easy question to start.

Dr Toby James (University of East Anglia)

I will have a go at that. The bill allows a lot of flexibility—much of the detail would come through statutory instruments. If I recall correctly, the bill also provides ministers with the ability to use secondary legislation to change any of its provisions.

This might echo the comments made in last week’s evidence, but it could be that there is too much flexibility, in so far as there might be concerns that it would restrict parliamentary oversight of the legislation. If the objective is flexibility, the bill achieves that objective. However, there is probably too much flexibility.

Dr Theresa Reidy (University College Cork)

The bill certainly includes a lot of flexibility on the campaign conditions, but some of the discussion suggests that all referendums are equal and equally spirited and contentious, and that they will naturally involve a lot of high-stakes engagement. That is not necessarily the case.

If you begin to use referendums quite frequently as a tool, you will inevitably come across technical issues that will not engage the public. A bit more thought might be given to the role that the Electoral Commission could play at that point, in particular in providing more impartial information to voters. Active campaign participants might not be leading the debate in the field, and there will be a need for information to be provided to voters, and that will require the Electoral Commission to step up to the mark, and, perhaps, in hotly contested campaigns, do more than it might normally do.

On financing, if the referendum is on a technical issue, there might not be obvious well-resourced campaign participants on the ground, and you might want to provide small amounts of campaign funding to encourage and incentivise umbrella organisations to form, because you already have the structure to do that. Such approaches emerge when you begin to use referendums frequently, in order to deal with non-contentious issues.

The Convener

I asked my initial question because I wondered whether, in viewing the bill through the prism of one particular referendum—in the committee’s last session, that tended to be indyref2, should it ever happen—there is a danger that we might lose sight of some of the flexibility that is needed. We could end up amending the bill to address concerns relating to a specific referendum, which might undermine the policy intent that was there in the first place to create framework legislation. Does anyone want to reflect on that? I see Chris Carman nodding.

Professor Chris Carman (Stevenson Trust for Citizenship)

I agree with that assertion. There is a problem in having a very specific example of a referendum in our heads when we are thinking about this bill. You might want to consider the issues on which referendums can be held. Would they be held on any devolved issue? How would the decision be made on what such an issue might be? There is always some discussion on the extent to which devolved powers reach and do not reach into different areas. What body would adjudicate that? Would that be left to an independent body? I assume that you would not want the Electoral Commission to do that, because it tends to remain a step back from those sorts of contentious political issues. So, how would you make decisions on that, and what would be the mechanism for determining how to do so? I agree that you should keep in mind—as Theresa Reidy just said—that referendums can be held on a variety of issues, from small technical constitutional issues to larger issues that affect the public mind.

Dr Andrew Mycock (University of Huddersfield)

It is encouraging that the bill shows a sense of keenness for policy learning from previous experience of referenda. There are two substantive questions on this matter. One is about frequency of referenda, and at the moment that seems to be rather open ended. The other issue that has not been addressed is what triggers referenda. Often, we find that the process is contentious in itself. Some parts of Europe have stipulated conventions that allow for that, such as Switzerland and the Republic of Ireland. I do not see that consideration in the content of the bill, and it is something to think about. There is tension between the political process and purpose of those referenda. Both matters need to be considered.

Adam Tomkins (Glasgow) (Con)

Before I ask my question, I declare an interest in that, like Professor Carman, I am a member of the professorial staff of the University of Glasgow. Thank you for reminding me about that, convener.

I want to continue the line of questioning. The reason why it is not a problem in UK law is that, under the UK equivalent of this bill—namely, the Political Parties, Elections and Referendums Act 2000—each referendum requires its own bespoke act of Parliament. As introduced to the Scottish Parliament, the bill does not have that stipulation. Section 1 of the bill gives to the Scottish ministers the power by regulations to provide for a referendum.

Given that, unlike PPERA, this legislation would not require a bespoke act of Parliament for each referendum, should the bill specify the subject matters, within devolved competence, on which referendums should, might or could be held, or is the solution just to omit section 1?

Professor Carman

In a way, that refers back to what I just said about devolved competences. There are different ways in which you could handle that. You could set up an independent commission that would take a view on devolved matters. I am reminded that, over the years, petitions committees of the Scottish Parliament have taken very different views of what is and is not devolved and the extent to which devolved powers reach into, say, the health sector.

Where devolution starts and stops is contentious. To some extent, it is a political decision. There needs to be a mechanism to decide that, whether that is allowing ministers to do it as the Government of the day—that is one political decision—or setting up an independent commission. I suspect that going so far as to try to provide for that in this bill would be quite difficult. Trying to specify areas in the bill would be a minefield and could end up causing more problems, because the level of specificity that you would have to get to would be quite granular, I imagine.

Adam Tomkins

Let us take an example that is wholly in devolved competence and for which there is no argument about whether it is devolved or reserved: the setting of the Scottish budget. It is an argument that I explored with the Government’s bill team at the committee meeting before the recess.

The Scottish Parliament is a parliament of minorities, as it is designed to be. Let us suppose that the cabinet secretary for finance cannot get his or her budget through Parliament, and he or she decides to use the power under section 1 to establish a referendum on whether the budget should be passed. Given your understanding of the international best practice in the use of referendums in parliamentary democracies, is that good practice? The Government bill team confirmed that, as drafted, the bill would enable a referendum in circumstances such as that. Is that the use of referendums that we should contemplate in Scotland?

Dr James

It seems that the bill would enable a potentially rapid expansion in the number of referendums that could and would be held, which could have profound consequences, both positive and negative. In many respects, it would change the nature of Scottish parliamentary democracy by making it much more direct. There are advantages to that, but there are also disadvantages. Referendums are about the will of the majority—the 52 per cent, the 55 per cent and the 60 per cent—but we must think about minority interests as well.

The committee might want to consider being cautious about allowing ministers to call referendums in that way and with that degree of speed. Globally, referendums are still relatively new territory. It is a relatively new era for them—certainly in the United Kingdom and Scotland. The committee should be wary about the situation leading to referendums being called very frequently, which would be a major change.

10:45  

Dr Mycock

If there were to be a shift towards holding referenda to resolve issues that emerge in the Scottish Parliament, we would be looking at a fundamental change in Scottish political culture.

In that context, if you are thinking about listing a range of policy areas on which referenda are to be held, you are entering into territory in which parliamentary sovereignty and popular sovereignty increasingly come into conflict. One of the experiences of the 2014 Scottish independence referendum and the 2016 European Union referendum has been the creation of a binary effect in society, which can often be in conflict with the multiparty framework of the Scottish Parliament itself. There is great need to think about the implications of increasing the number of referenda, in the context of the broader framework of political culture.

Dr Reidy

The bill as drafted appears to provide an enduring framework for the regulation of referendum campaigns. The question taps into a higher-order question: under what circumstances and for what types of issue would referendums be held? In a way, the citizens initiatives issue raises the broader issue of the kinds of referendum that would be held. Would a referendum be purely about constitutional issues or could it be about ordinary legislation? Adam Tomkins is talking about ordinary legislation, with the referendum triggered by a minister, but if there were provision for citizens initiatives, citizens could initiate legislation in particular areas.

The international experience is that budgetary issues are generally excluded from citizens initiatives, and that top-down referendums on ordinary legislation are quite uncommon, albeit that there are some examples. For example, in the United States, famously, a citizens initiative in California affected property tax and was a significant contributor to the near-bankruptcy of the state. Designers tend to leave budgetary issues, foreign policy and minority protection rights out of referendum procedures—indeed, such issues are often specifically precluded from inclusion in referendum procedures, for that very reason.

Professor Carman

I was going to say something similar. Budgetary mechanisms can be excluded. Instead of thinking about what is included in the context of the legislation, you can think about what is excluded.

In the context of the example that Adam Tomkins gave, serious consideration of the regulated period or relevant period—whatever you are going to call it—would be needed, because the length of the referendum campaign could be problematic for certain pieces of legislation, such as budget legislation. A long regulated period would create a period of uncertainty about the budget. That, in itself, might stop the behaviour that Adam Tomkins talked about.

The flipside of the point about shifting Scottish political culture is that the approach might be regarded as extending Scottish political culture. Openness, transparency and participation were core founding principles under which the Scottish Parliament was set up. Those principles led to, for example, the petitions system and cross-party groups, which have been ways of bringing the public into the political sphere. One might think that those approaches have not shone at their brightest, so extending such mechanisms could—possibly—lead to a more participatory democracy.

The Convener

Alex has the next question. Sorry, I should have said Alex Burnett; I have to remember that we now have two Alexes on the committee.

Alex Rowley

Mine is pronounced Alec.

The Convener

That will help me out. Thank you. On you go, Alex.

Alexander Burnett

Thank you, convener.

Last week, the committee heard strong evidence that the Electoral Commission should be consulted on question testing, even when a question has previously been proposed and tested. Will the panel members give their views on that?

Dr James

It is very good practice to involve an independent body in question testing. Colleagues are more expert on this than I am. The precise wording of a question can obviously affect the result. Therefore, it follows that we have an independent body acting as a check and balance, ensuring that the question is reasonable, fair and fully tested.

Dr Mycock

It clearly matters. It may well be that there should be something that involves not just the Electoral Commission but citizens themselves. It is the kind of issue that would work well in a citizens assembly. The idea that the contours or conventions of any referenda are designed by people who are not entirely accountable to them can seem rather abstract to voters. There may well be a need to consider both the independent input from the Electoral Commission and the input from some form of citizen representation.

Dr Reidy

In general, it is good thing to have an independent Electoral Commission consult on the question. Having a degree of flexibility on the design of the question is important. I can give the committee some evidence from Ireland. In Ireland, the phrasing of the question is set down in legislation, so each referendum question asks whether you agree with the legislation to, for example, the 38th amendment to the constitution, and in brackets there will be a summary phrase, which may or may not make it apparent what the referendum is really about. We have evidence to show that that sometimes causes voter confusion and can make it difficult for people to vote. In particular, where there has been a negative built into the question, such as, “Do you agree with abolishing this house of Parliament?”, we have seen that voters find it very difficult to understand. Indeed, we have evidence that shows that some voters voted the opposite way to their clear intentions. Having flexibility in the design of the question is very useful and having an independent body involved is the right road to go down. Our system in Ireland is far too inflexible and we have evidence to show that it has not served us well.

Professor Carman

I agree with that. International evidence shows that question testing is a good thing. Mr Burnett’s question is really about the second testing of the same question or something very close to it. If there is any deviation from the previous question, I would say that testing it would be appropriate. The question is whether the same question being run again deserves further testing. The answer to that is probably yes, because public understanding of political issues changes. We can use relatively recent examples to show that, as public opinion changes, particularly in relation to pre-legislative as opposed to post-legislative questions, even if the same question is rerun in a relatively short period, some degree of testing is desirable. One might question whether that would require the full 12-week process, but there would be a need for some degree of confirmation or other sort of testing.

Alexander Burnett

Professor Carman, as a follow-up to what you said earlier about being able to look at the bill objectively and separating out future referendums from past referendums, do you think that the specific reference in the bill to previous referendums—the only example being the 2014 referendum—is helpful?

Professor Carman

It is difficult to say. It is probably desirable for the bill to be as neutral and removed from previous experience as possible, if only because the legal precedent that is established by referencing previous examples might cause some issues down the road.

Tom Arthur (Renfrewshire South) (SNP)

As a member of the Delegated Powers and Law Reform Committee, I explored this issue with colleagues and the cabinet secretary yesterday. One of the points that the cabinet secretary made—and I am keen to hear your views on this—was that the question that was used in the 2014 independence referendum has been used in almost every opinion poll since then and is commonly understood. I think that the question has been used in more than 50 opinion polls. Therefore, it might create unnecessary confusion to deviate from that question. What are your views on the cabinet secretary’s statement? Do you agree or disagree?

Professor Carman

I guess that I could see that. In a way, it runs contrary to what I have just said, in the sense that you might want to retest. Even John Curtice would recognise that there is error in polls, and we get slightly different responses to questions depending on sampling methodology and how surveys are run. Furthermore, the fact that a question is used in public opinion polls does not mean that the public necessarily understand what they are responding to, although there are certainly ways of improving question wording in polls. As a member of the Scottish election study team, I note that we ran the same questions over and over again, recognising that they tend to lose their meaning to the public over time, or change their meaning.

I still think that some sort of independent evaluation would be required. If a question has been used repeatedly in polls, we might not require the full 12 weeks, or the full period that the Electoral Commission would require to test a full, unique question, but we would probably still want to have some independent experts look at it in order to certify that it was still a fair and reasonable question.

Dr Mycock

If we think about the influence of the independence question on Scottish society over the past decade, regardless of how the question is framed, many people will translate it into how they see the question, and they will simply reinforce their particular view. There is of course a constituency of don’t-knows, or those who are prepared to shift their view, but much of the evidence suggests that, regardless of how you frame the question, many people in Scotland will recourse to the position that they have on that, which is rather fixed.

Dr Reidy

Drawing from some of the evidence in the Republic of Ireland, I note that we have had multiple referendums on many different issues, and I think that it is good to think about the subject more broadly. The question wording does not necessarily dictate the direct lines that the campaigns will take. We had a referendum on divorce in 1986 and another one in 1995. The questions were almost identical, but there were different outcomes and different types of campaigns. There are underlying shifts in public opinion, and on particularly deeply rooted, cleavage-type issues such as that, opinion change happens very slowly over long periods of time.

It is important that the question is clear, that voters understand what it means and that any underpinning legislation that might be implemented on the outcome is clear and direct, but the question will not necessarily determine the types of campaign that there will be or the issues that will come up. The participants in the campaigns and the issues that are live can change over time, even with the same question. We have had that experience with fairly intractable social and moral issues, but we have also seen it in relation to the repeat of European Union referendums. We have had a couple of those, and we have had very different debates. Economic and socioeconomic circumstances can change, and that is really what delivers the final outcome. The crucial thing about the question is that it is clear and understandable to the voters.

Tom Arthur

I have a supplementary question on the idea that Professor Carman raised of having an expedited process for the Electoral Commission to engage. Whether the referendum was made through regulation or through primary legislation, it is likely that a committee—perhaps this committee—would take evidence, so there would be an opportunity for the Electoral Commission, via that process of engagement, to give at least a preliminary view or a provisional opinion. Rather than there being a full 12-week period of testing, would that be a forum where it could give its informed view?

Professor Carman

Yes. Obviously, it is up to the committee to decide who it invites to give evidence, but one would think that the Electoral Commission could come and provide it. It could depend on when the committee hearing was held and whether the Electoral Commission had enough time to gather evidence before it was invited to provide evidence to this committee, or any other committee.

11:00  

Another layer of consideration is public perception. If the process were to be run through the Parliament, that might be seen as politicising the testing of the question. You might then like to think about whether a more independent view would need to be taken, as opposed to the matter coming through one of the committees.

Tom Arthur

The simple point that I was making was that we have an opportunity for the Electoral Commission to submit evidence, whether orally or in writing, so we would not be ignorant of what its view was.

Professor Carman

Again, that is assuming that it would be granted enough time. The questions would then be what that amount of time would be and whether it would need to be legislated for. There is therefore a bigger issue to do with timing.

Tom Arthur

I think that we are due to have the Electoral Commission before us soon, so I look forward to asking about that then.

Alex Rowley

I have a question on the same theme of legitimacy. Is it important that referendums are seen to be legitimate and not set up by any of what we might call the governing parties? If the Government decided to hold a referendum and it determined the question that would be put, is there not a danger that that would bring such legitimacy into question?

I think that there was a second referendum in Ireland over Europe.

Dr Reidy

It has happened twice.

Alex Rowley

I would need to look at whether the situation was different there. In general, if a referendum has to be rerun but the circumstances have changed significantly, is there not a danger that, if the governing party simply insists on its question, the legitimacy of the whole process will be doubted? If a country is divided as it goes into a referendum in which even the legitimacy of the question is in doubt, is that good for democracy?

Dr Mycock

The framing of the question is one element of legitimacy, but we have learned—particularly from the European Union referendum of 2016 and, to a lesser extent, the Scottish independence referendum of 2014—that legitimacy can be doubted in a number of areas. For example, there could be questions about the way in which the different campaigns use facts or are being less than secure in what they claim, or about the way in which they are funded. It is a remarkable feat that both remainers and leavers have come to the conclusion that, for many people, the European Union referendum campaign process was not legitimate. In many ways, that highlighted the fact that the UK Government had rushed into it, had not thought about the conventions and had not given the electorate enough time to learn about the issues.

Many things about the set of campaigns in 2014 were appropriate, such as the two-year period of learning that allowed Scottish society to comprehend the issues concerned. Although both campaigns were febrile and rather hotly contested at times, they largely provided the electorate with substantiated cases for and against the proposition. That was not the case in the 2016 European Union referendum, in which, at times, both sides were loose with the truth.

Therefore although I agree that the question is an issue, it is the wider political approach towards how a campaign is run that often produces challenges to legitimacy.

Alex Rowley

I understand that but, in 2014, all parties had come together and agreed on the question. Is it not crucial that there is some kind of agreement on what people will be asked?

Dr Mycock

In principle, yes—I strongly support that position. It is very important that all political parties and citizens—I highlight again the idea of having their input—have a sense of having legitimised the process at the beginning. If they do not have that sense, you will find that the legitimacy of the referendum will be contended even before it has been held.

Dr Reidy

On legitimacy, an important starting point is that there should be clarity about the circumstances in which a referendum can be called and who is responsible for calling it, so that all referendums are created under the same types of structures. The instrument should be applied and used equally within the system, which gets back to questions about whether it is on constitutional matters or ordinary legislation, who can trigger it and so on.

There is a second point, which relates to the likely success of referendums. The international evidence shows that when there is cross-party consensus—particularly when there is parliamentary consultation and agreement around the referendum issue—there is a greater chance of it being successful. I was reading some work yesterday about constitutional amendments in central and eastern Europe, which said that they have a much higher chance of passing in referendums if there is some degree of cross-party consensus. It is a political issue, which translates into the campaign, but the starting point has to be clarity about what types of issue will be dealt with in referendums and how they will be triggered. That gives an enduring framework and way of delivering referendums that voters can understand and become more familiar with over time, which helps to underpin and build broader legitimacy for the referendum instrument as a general tool for making decisions.

Regarding the idea of revisiting questions, lots of countries revisit referendum questions and the same is true of citizens initiatives; the same kinds of things come up over and over again. That comes down to the much bigger question of how a country’s direct democracy intersects with its representative democracy. Again, it is about who can trigger referendums and what happens when results occur that perhaps run contrary to other policy issues or more complex ones. What, then, is the role for representative democracy to address those kinds of issues? Those are very big design questions for a system, which have to be understood and addressed in a broader sense, rather than through the prism of a particular—albeit very live—referendum issue.

The Convener

Professor Fisher, who gave evidence last week, said:

“polling companies constantly review their questions because the questions rapidly go out of date in respect of people’s understanding of what they mean.”—[Official Report, Finance and Constitution Committee, 4 September 2019; c 19.]

Tom Arthur talked about the number of times that polling companies have used the question that was used in 2014. I am struggling with this in my head but, if polling companies have not altered the question over that period, can we assume that they are comfortable that people’s understanding of it has not been lost? There is a conundrum there.

Professor Carman

Not necessarily—there is a variety of reasons why one would not change the question. In, particular, if someone is running the question for academic research or media purposes, an important factor is to have a longitudinal timeline of responses to the same question. As we have already established, small changes in question wording can lead to different responses. Therefore, even if the question is not asking exactly what they want it to ask, someone might ask the public the same question over and over again to get that timeline of responses.

The Convener

Does that not create confusion if the question then changes?

Professor Carman

Possibly. That goes back to the question of whether an independent body should look at the evidence. It could use the evidence from the polling firms and does not necessarily need to run its own surveys. It could do some statistical analysis to find out how stable responses are over time across different groups, which will give a sense of whether the public still understand the question in the same way.

Neil Bibby

If the justification for running a second referendum is a material change in circumstances, it is not the same proposition or the same question that is being asked. In those circumstances, do you not think that the Electoral Commission should be fully involved in testing the question?

Dr James

I think that the Electoral Commission should be fully involved. I cannot see any advantage in limiting its role or the time that it has available to do that.

Dr Mycock

It is appropriate for every referendum—if it is repeating an issue or if the material circumstances have changed—to go through that process, even if it is simply a confirmatory process, so that you get buy-in from as many citizens as possible on the legitimacy of the particular referendum.

The Convener

John Mason has a question about the Irish experience.

John Mason

We have heard a lot of evidence so far, and there are some interesting points to pursue in your evidence, Dr Reidy. You have mentioned that some referenda might be on contentious issues. Clearly, there will be a lot of people on both sides of a contentious issue, but some referenda might not be on a contentious issue. Can you give us an example of such a referendum, maybe from Ireland? I do not think that we have had any here that have not been contentious, so I am interested in that point and in your suggestion that the Electoral Commission, for example, should provide objective information. Would that be only for the non-contentious referenda, or should it be for the contentious referenda as well?

Dr Reidy

I will answer your second question first. If you conceive of this as an enduring framework that would apply to all referendums, in principle, the same rules should apply to all referendums in relation to technical matters. If it is good practice for the Electoral Commission to comment on all questions, that should apply to all referendums; equally, if the Referendum Commission in Ireland or the Electoral Commission here provides objective information, it should do that over time.

The key learning from the Irish experience is that voters have become familiar with the information that is provided by the Referendum Commission. They expect to get the leaflet in the post, they listen to the advertisements and the chairperson of the Referendum Commission participates in a lot of public information sessions. A lot of the research evidence that we have shows that, as a result of that, the Referendum Commission’s information is highly valued—it is influential in shaping voters’ positions and their understanding of issues—and the Referendum Commission is very much trusted by the voters. That did not happen overnight. It happened because of the cumulative experience of running referendums. We have been having roughly one referendum a year for the past 10 to 15 years, so there has been a cumulative build-up.

John Mason

Can I press you on that point? How much detail and what kind of information does the Electoral Commission give? My impression is that what we have had so far has been quite insipid—it is about which box to tick and so on—whereas, in the European referendum, there were big debates about, for example, whether the health service would get more money if we left the EU. Would the Electoral Commission comment on that sort of thing?

Dr Reidy

In Ireland, the Referendum Commission provides objective, factual information that is not disputed. There are limits to what information it can provide, because there will still be areas where there are substantive elements of contention—

John Mason

So, the commission could not say anything about the future, could it?

Dr Reidy

Let us take, for example, the fiscal stability treaty, which was the topic of the most recent EU referendum that we had in Ireland. The Referendum Commission developed information to explain the contents of the fiscal stability treaty, what it was about, what the implications would be for Irish budgetary policy and the Commission’s oversight of the budgetary policy. That was all fairly objective information. The chairperson of the Referendum Commission then participated in public interviews and debates on those questions.

Previously, a persistent thread running through European referendums in the Republic of Ireland was that the new legislation or treaty would bring in abortion and supersede the provisions on abortion that were in the constitution at that point. The chairperson of the Referendum Commission was able to conclusively say, “There is nothing in the fiscal stability treaty about abortion—it will not affect abortion rights one way or the other.” It is not always that clear cut, but that is a nice, clear-cut example of how the Referendum Commission can shut down a line of argument.

Your first question was about the types of referendum. In the Republic of Ireland, referendums happen because there is a requirement to change the constitution.

John Mason

Is that the only time that you have referendums?

Dr Reidy

We have legal provisions for what are called “ordinary” referendums, which are the policy referendums that were mentioned earlier. However, they have never been used. We have had referendums only on constitutional changes. The constitution is a fairly comprehensive document. As a consequence, as we have outgrown the mores of the 1930s, we have had to have a lot more referendums in recent years.

You have probably heard a lot about referendums on equal marriage and on abortion. We have had lots of questions on such issues. We have also had lots of referendums on quite technical issues to do with legal and political institutional design, which are in the constitution and relate to, for example, the houses of Parliament and the courts.

In 2011, for example, there was a referendum on whether parliamentary inquiries could be held under particular circumstances. It is hard to find members of Parliament who have strong views on parliamentary inquiries; finding citizens on the street who have views on the matter is even more difficult. That referendum was on a matter on which there was very little information and there were very few strong views among voters, so it was important that the Referendum Commission stepped into the field and provided information on what the proposed changes meant, how they would be implemented and what the consequences would be. Ultimately, the proposal was defeated.

11:15  

That brings me to a bigger point about referendums. There is an interesting piece of work by a Canadian political scientist who has classified the types of issue on which we have referendums. He talks about big, cleavage issues, on which people have fundamental views. Scottish independence is probably a big, cleavage issue, as is unification of Ireland. We expect people’s opinions on such sincere, value-type issues to change really slowly.

There are then the mid-range issues—the more technical, policy issues. The European Union referendums in Ireland fall into that category. What the political parties and civil society actors say about them is very influential.

After that, there are the more technical issues that come up over time. A referendum might relate to a specific policy issue at a point in time. Views on such issues can be quite volatile—as was the case with the parliamentary inquiries referendum in the Republic of Ireland. People really do not have any opinion on the issue three weeks before the referendum happens, but a rapid process of opinion forming happens during the campaign, with each new piece of information potentially changing a person’s mind. Today, a person hears something that makes them favour Oireachtas inquiries, but, the next day, all the attorneys general come out and say, “This is a dangerous change,” and the person changes their mind again, because they are not making the decision from a place of fundamental values on the topic.

We have referendums across the spectrum, but, in the context of the bill, the issue is largely envisaged through the prism of the more cleavage, fundamental questions.

John Mason

Is that why you seem to suggest that both sides of a campaign should be financed—so that a campaign can be created if none exists? We might not need to do that if we are going to have referendums only on contentious issues.

Dr Reidy

If you are dealing only with contentious issues and the intention is not to have technical referendums, it might not be necessary for you to do that. We do not do it in Ireland, even though we have technical referendums fairly regularly, but we have done post-referendum research that shows that a consequence of that is that voters tend not to know much about the issue. Often, there are no posters and there is not much by way of debate.

A solution that is often proposed in that regard is the provision of a small amount of money to campaign groups. However, you should keep it in mind that such an approach artificially creates a no side, in a way. There is concern that money could be given to people who would use the referendum to create a platform to campaign for something else. You would have to be careful about how you went down that road.

Some referendums can take place on technical matters that do not generate much interest or intensity on the part of voters or the political parties.

John Mason

Thank you. I addressed the question to Dr Reidy, but I think that other panel members want to respond.

Professor Carman

Our conversation started with consideration of the role of the Electoral Commission. So far, we have talked about the commission in a variety of ways—I have jotted them down. We have talked about the commission providing fair, neutral and balanced information to the public on the content of a referendum. We have talked about the commission being involved in the regulatory processes of the referendum. We have talked about it administering and running referenda, and we have talked about it testing questions.

In his briefing paper, Alistair Clark notes that an advantage of the bill is that it separates the regulatory function from the administering function, with the latter going to the Electoral Management Board. Within the context of the bill, the committee might want to think clearly about the role of the Electoral Commission. If the commission is in charge of providing fair, balanced information, one might want to separate that from the regulatory function, which has already been separated from the administering function. It becomes quite complex.

John Mason

Is there any best practice on that, or does it vary around the world?

Professor Carman

My sense is that it is rather varied. In the United States, if we look across all 50 states, there are different processes in place for regulating information. As the committee can imagine, in the US it tends to be no holds barred and everyone goes for it, which can be quite problematic. We have seen before that it can be quite problematic if we do not regulate the sorts of information flows, particularly in relation to internet and online access.

Dr Mycock

I will take that on. In some senses there is an important requirement for an independent body to provide information for the electorate about the context, issues and consequences of any referendum. What has been proven by both the 2014 Scottish independence referendum and the 2016 European Union referendum is that a Government body that is stimulating the referenda cannot be relied upon to provide that impartial information—that was the case in both instances. Beyond that, there is a really important question about the learning period. There is strong evidence to suggest that a campaign period of anything around 10 weeks, which is the usual norm for a UK referendum, does not provide the electorate with sufficient ability to gain an appreciation of the issues concerned.

American research on political psychology suggests that, about six weeks before an election, most electors move from being objective about trying to consider both sides of any issue towards a more emotional response that tends to be less evidence and fact driven.

John Mason

You are suggesting that they will have made a decision after six weeks.

Dr Mycock

They may have closed down to the idea that there are multiple perspectives on a particular issue and then turned to a more emotional response. The Scottish independence referendum had a two-year lead-in, which provided much of Scotland with that chance to learn about the issues. It is possible that it was too long. In many ways, it was all enveloping and people felt slightly exhausted by the end of the process. At the same time, the European Union referendum has proven that such a short period did not allow many segments of the electorate to fully appreciate the other side’s arguments.

That campaigning period is one of the things that needs to be considered in respect of the bill. The problems around the electorate learning about the issues must be taken into consideration in deciding what that period should be.

Gordon MacDonald

Before we look at how we can encourage voters to participate in a referendum, I want to ask about voter registration. Scotland’s population is at a record high, yet the Office for National Statistics produced a report in March 2019 that highlights that Scottish voter registration dropped in 65 per cent of council wards between December 2017 and December 2018. Is there a particular difficulty with voter registration in Scotland? What underlies that drop?

Dr James

There is a UK-wide problem with voter registration. There has been a long-term decline in voter registration rates since the second world war. One reason for that is changing lifestyles. One intervention was the move to individual electoral registration in 2014, although it is important to note that it was introduced at a different point in England and Wales to when it was introduced in Scotland; the Scottish independence referendum, for example, was still run under household registration. It is widely thought that one of the effects of individual electoral registration has been a reduction in the completeness of the electoral register. There were some positive outcomes, including increased accuracy and reduced opportunities for electoral fraud, but research shows that young people and students in particular were negatively affected.

If we think back to 2014, the system was that one head of household—that was the phrase that was used—could complete a registration form for everyone in that property. Parents would possibly have filled in the electoral registration form on behalf of 16 or 17-year-olds who were to be included in the franchise for subsequent elections. It is estimated that of all 18 to 24-year-olds, roughly a third are missing outwith peak election season—possibly 8 million people across the UK who are either missing entirely from the electoral register or are incorrectly registered. That could be a challenge in a future referendum.

Some of what I put forward in my evidence to the committee, which draws from the “Missing Millions Still Missing” report, points to ways in which public service agencies could play a role in registering people to vote. There are possible interventions.

The situation also places considerable pressure on electoral officials, from whom the committee will hear next week. The types of pressures that we hear about include, for example, last minute spikes in registration applications. We have seen about a quarter of a million applications over the past week in the UK, just because of the mention of the words “general election”. In the run-up to the 2016 Brexit referendum, the voter registration website crashed because there was such a great volume of traffic. The electoral officials have to process every single application and check whether a person is registered. That is a potential problem.

Gordon MacDonald

Should we move back to head of household registration, or should we have some form of automatic compulsory registration—for example, a young person being automatically registered to vote when they get their national insurance card at 16?

Dr James

It would be difficult to move all the way back to household registration, which has its advantages, although it is a Victorian system. Some automatic registration interventions certainly seem to be clear winners, including that suggestion for registration of 16-year-olds. At the moment, 16-year-olds are sent a letter that tells them their national insurance number, which is a very important moment for them. They could also at that point be at least encouraged to register to vote, but why not simply add them to the electoral register at that point, too?

Dr Mycock

We are working with electoral registration offices across the UK on that question. The national insurance approach would not work in Scotland, because the age of registration is 14 for some elections and 16 for others.

I was a member of the independent youth citizenship commission, which was convened by the UK Government and sat in 2008-09. We recommended that automatic registration be introduced. Schools could easily oversee that. It would save a considerable amount of money in the short and long terms.

There are general data protection regulation issues, because under-16-year-olds have a separate convention, so I urge the committee to think about that. In Scotland, citizenship education is a statutory subject, although it is not uniformly or universally well taught at present. In Wales, where they are considering lowering the voting age to 16 for local and national parliamentary elections, there is an opportunity for that citizenship programme to include all 14-year-olds signing on the electoral register as part of their political education. If you do not introduce automatic registration, I strongly urge you to consider that option.

Gordon MacDonald

You touched on political education. From looking at turnout figures for the EU referendum, it is my understanding that 64 per cent of 18 to 24-year-olds voted, and 80 per cent of 65 to 74-year-olds voted. In the independence referendum in 2014, 75 per cent of 16 to 18-year-olds voted and 92 per cent of over-55s voted. What can we do to address that discrepancy in turnout by age group?

Dr Mycock

First and foremost, when the voting age was lowered in 2014 for the independence referendum, and subsequently for Scottish local and national parliament elections, the issue of youth democratic socialisation was not considered in a developed manner at the same time. I urge that that situation be addressed.

Local authorities in Scotland provide different levels of citizenship education. About one third of young Scots take the modern studies curriculum, so they get a good level of political education, but there is clear evidence that sizable numbers of young Scots do not receive appropriate political education. So, regardless of the issue, they are uncertain about that territory.

11:30  

There is also a second question, which is not simply about 16 and 17-year-olds. The biggest drop in turnout is actually among 18 to 24-year-olds. Something problematic is happening there. Although there is not a particular issue with one group of 18 to 24-year-olds, it is true to say that it seems to be those who do not go to university who do not turn out. In that case, it is not just that there is a need for statutory political education in schools and colleges before young people are enfranchised; there is also a need for political parties to think about the spaces and places where those young voters congregate, particularly those who are not in some form of education after the age of 18, and to ensure not only that they understand the issues but that they are listened to and represented.

One of the things that has not yet really affected Scottish political culture is the fact that lowering the voting age has not caused any real change in the way in which political parties appeal to younger voters. We have not seen policy making change radically, and young people’s voices are not yet voluble enough.

Furthermore, the age profile of representatives in this august institution and in local authorities has not changed. In fact, since the voting age was lowered in 2016, the average age of members in this institution has gone up. There is something to think about there with regard to the broader way in which Scottish politics resonates with and reflects younger voters.

Dr James

I agree with all that. Obviously, a political education should begin in schools. It is interesting that the bill encourages statutory bodies to promote participation. I also add that we should exercise some caution with regard to how effective they can be in doing that. Obviously, public organisations have many skills and have well-trained staff, but there might be limits to their ability to capture the grass roots. A positive contribution to reaching hard-to-reach communities could be made by having a board that includes charities and schools, or by having grants or competitions through which money could be given to small organisations so that they could have democracy champions who could encourage everyone to vote.

Professor Carman

Our evidence is from a study that we undertook following the 2014 referendum that surveyed teachers and students in the west of Scotland. One of the clear findings was that teachers felt that the guidance that came from local councils and headteachers was quite varied across council areas and schools. Some teachers felt that they were strongly discouraged from discussing controversial political issues. Therefore, unless there is some sort of mechanism, relying on schools to take care of the sort of political education that we are discussing is highly problematic.

Some 20 per cent of secondary schools in Scotland do not offer modern studies, which means that there is a limit to the extent to which students have access to that subject. The curriculum for excellence says that citizenship education should be a part of every school year and go across all subjects. However, it was pretty clear from our survey that most teachers who responded to our survey who are not modern studies teachers felt that that was an area that only modern studies classes were supposed to handle. For example, I think that only 26 per cent of teachers felt that citizenship was something that should be talked about in the context of a history class, even though it is a good example of a subject that you might imagine citizenship could be integrated into.

It is fairly clear that political literacy is not integrated across the entirety of the curriculum, which means that you have to be careful about how you think about the issue. That is why, in our recommendations, we say that you would need to think about mechanisms—whether they are dealt with in secondary legislation subsequent to the bill or in some other way later on—that can measure the role of schools. At the moment, pupils across Scotland are exposed to different levels of information and inconsistent information, and there are obvious questions about fairness in that regard.

Gordon MacDonald

I accept what you have said. However, I am most concerned about 18 to 24-year-olds, whose turnout level is only 54 per cent. Obviously, there is an issue there that needs to be addressed.

I am curious about the Irish situation. Does Ireland witness differential turnouts by age?

Dr Reidy

Yes, we have a particularly acute difference between younger voters and older voters—in European data, it is second only to that in the United Kingdom. It is worth noting that by having voluntary procedures, the United Kingdom and Ireland are outliers in terms of voter registration procedures—most other European countries have automatic registration procedures, which simply removes a barrier to voting.

That said, the international research tells us that things that we do to make it easier for voters to get to the polls, such as early voting and postal voting, help just a small percentage of voters. The overall impact on turnout tends to be quite modest—just a couple of percentage points. The fundamental things that mobilise people to vote are an interest in politics and a belief that politics affects them. Unfortunately, that is a much more difficult conundrum to address.

Professor Carman

In the United States, various experiments have been tried. Polling stations being put in shopping malls is one of the few examples that have had any sort of effect on the age profile of voters—it also usually makes a difference of just a few per cent, but it is a start. If that were to be combined with automatic registration, we would start to see slight changes to the age profile of voters.

Dr James

I can add another American example. About 25 years ago, the US introduced the National Voter Registration Act, which required particular public agencies to ask people to register to vote when they came into contact with them. That is another option that could be implemented here, given that the Scottish Government has responsibility for a wide variety of public agencies. The agencies could say, “You’ve come to see us about this today: by the way, do you want to register to vote?” Such everyday conversations can make a big difference.

Gordon MacDonald

Thank you.

Patrick Harvie (Glasgow) (Green)

There have been a few side comments on regulation of the digital space around donations and accountability of money as it flows through the political system, and around the accuracy of information. I want to draw some of those threads together.

Dr Reidy’s submission says:

“As concerns about mis-information grow, it is likely that the role of independent electoral commissions will become more crucial in providing comprehensive information which can be trusted by voters.”

I am worried that if we rely on that kind of argument we will miss the effect of the way that digital campaigning is happening at the moment, in that it is not only having the effect of undermining voters’ trust in objective information, but is designed to do just that—it simply offers voters a choice of information to subscribe to, rather than recognising that anything is objective.

What is your view on how well the bill innovates in respect of regulating online activity? How much more scope is there for innovating in that area? Where is the balance between respecting freedom of speech and holding people to account for telling objective lies? There is a difference between expressing a contentious or contested opinion and saying,

“Turkey (population 76 million) is joining the EU”,

which is a barefaced lie—or was during the campaign. Another example is:

“Now the EU wants to ban tea kettles”.

Those are objective lies. Once they are out there in the digital space, they may be being shared by individuals, rather than by companies that can be held to a digital imprint. If all that money goes into the campaign in the last few days or weeks, the effect will have happened and it will be too late. What potential is there to engage with, and regulate effectively, the new form of campaigning?

Dr Reidy

I am afraid that there is no answer to that question.

Patrick Harvie

That was my fear.

Dr Reidy

The conversation on that is being had in Parliaments across Europe. It was a particularly acute conversation in the run-up to the European Parliament elections earlier this year. The question is how to challenge misinformation and deal with the microtargeting of voters—as members will have heard a lot about in relation to Cambridge Analytica.

Online platforms pose significant challenges because of the nature of the medium. There is also the secondary issue, which is that such platforms are transnational by their very nature. That is where the real regulatory challenge emerges, because in effect you are trying to regulate companies and platforms that may exist outside the state, which is a fundamentally difficult thing to do.

Other European countries are getting at that by working collaboratively with the companies involved. Let us just gloss over that particular point. In advance of the European Parliament elections, a code of conduct was agreed between the social media platforms and the European Commission, with the quid pro quo being that if the platforms did not engage with the code of conduct, ultimately the Commission would legislate. While individual states may have particular difficulties—even the Republic of Ireland, where most of these companies are located, faces that challenge—it is easier to address such issues transnationally, and to have policies of good practice specifically in relation to the disinformation, to ensure that companies respond quickly to take down clear examples of disinformation, to deal with hate speech online and to have greater clarity around microtargeting and the ways in which companies can use people’s data.

At the moment, there is the code of practice, but European legislation will bring the issue into the legislative arena. Fundamentally, though, there will still be problems. National regulations can be created, for example on financial transparency and advertising, and it can be made illegal for somebody to fund particular types of advertising campaign. For example, we ban broadcast advertising in the Republic of Ireland. However, all kinds of broadcast ads on the referendum issue can be run on YouTube.

We are relying on online platforms to come together and decide that they will not take advertising revenue or facilitate those types of contribution. That actually happened in the abortion referendum in the Republic of Ireland. About 10 days out from the referendum, the companies came together and decided that they would not take advertising revenue. Although that was seen as disadvantaging the no side, in the end the margin of victory was so large that that was a bit of a moot point. Ultimately, you will have to have direct co-operation with online platforms, and you will have to rely on those platforms adhering to or complying with any regulations, in full awareness that they are transnational by their very nature.

Patrick Harvie

I take your point that Europe-wide political institutions would be quite helpful here—that is something that I would have a lot of respect for.

Dr Reidy

Sorry about that.

Patrick Harvie

No, I totally agree.

In terms of the bill, it seems to me that digital imprints almost treat digital campaigning just like a form of leaflet, which seems inadequate. Are there any other views about what scope we have in the bill to ensure that the framework for future referendums takes account of those new challenges?

Dr Mycock

What Theresa Reidy said is true. You are trying to address a moving target. The growth of artificial intelligence will make these things even more difficult. It may well be that this is less a question of regulation and more a question of education. Digital education of young people, and of citizens more widely, has been largely overlooked. In many ways, the problem with regulation is that it addresses the symptoms of the problem rather than the causes, which are that citizens themselves struggle to navigate an increasingly complex digital world. In recommending that you think about political education for citizens across Scotland, particularly young people, I would also say that digital education is very important.

I would urge the committee to consider connecting with the House of Lords select committee that is looking at the issue of digital democracy, because it may well be able to inform some of your work.

The Convener

One issue that we have not covered, which we covered last week, is the Gould six-month rule. Toby James made particular reference to that in his written submission, when he said:

“The establishment of this framework would make that goal”—

the six-month rule—

“more realisable and put Scottish referendums onto a more surer ground.”

Will you expand on what you mean by “more realisable” and “more surer ground”?

11:45  

Dr James

Sure. At the start, you stated that one of the aims of the bill was to provide flexibility, but it will also provide certainty about the legal framework, not just for electoral officials but for candidates and citizens. Research has shown that one of the challenges that electoral officials face has been the variety and complexity of electoral legislation and legislation on referendums. Also, in some cases, the legislation can arrive very late on. The Gould principles arose from problems in 2007, when legislation was late. The bill is an important step forward because it provides foundations. That is why I mentioned that flexibility can be a problem in how referendums are run.

Obviously, the question here is whether six months is enough. What about any statutory instruments or regulations that follow from the bill? You will hear evidence from electoral officials in due course, but the research that I undertook with Dr Clark indicated that they always prefer certainty—they prefer to know the date of the referendum and what budget is available. If anyone has ever tried to organise a wedding, they will know that it is very difficult to get the venue in place. It is exactly the same for elections. They tend to be the most complex logistical task to undertake in peacetime. The more information that can be provided to electoral officials, the better.

The Convener

The similarity between weddings and elections is going through my head. It is probably the same. I should probably not ask the question. I will avoid it.

Adam Tomkins

Just leave it.

The Convener

Thank you, deputy convener, for counselling me properly.

If there are no further questions, I thank the witnesses for a helpful, interesting session.

Meeting closed at 11:47.  

The Convener (Bruce Crawford)

Good morning and welcome to the 19th meeting in 2019 of the Finance and Constitution Committee. We have received apologies from Neil Bibby. It is the usual story for everyone’s phones.

We have one item on our agenda today, which is evidence on the Referendums (Scotland) Bill from two sets of witnesses. Our first panel consists of Andy Hunter, chairperson of the Scotland and Northern Ireland branch of the Association of Electoral Administrators; Pete Wildman, chair of the electoral registration committee, Scottish Assessors Association; Chris Highcock, secretary, Electoral Management Board for Scotland; and Mark Conaghan, chair of the elections working group, Society of Local Authority Lawyers and Administrators in Scotland. Welcome to the meeting and thank you for your submissions.

Given that, to outside observers, it could appear that the field is quite cluttered, could each of you give us a short description of the role of your organisation? It would be very helpful to get that on record before we move to general questions. I do not know whether anyone wants to go first, but I will choose Mark Conaghan to start us off.

Mark Conaghan (Society of Local Authority Lawyers and Administrators in Scotland)

I am the chair of the SOLAR elections working group. SOLAR is a collective organisation for local authority legal services and administrative services. The elections working group allows those who are running elections and returning officers in local authorities to get together. As part of that role, I am an adviser to the Electoral Management Board for Scotland.

Pete Wildman (Scottish Assessors Association)

I am the electoral registration officer for central Scotland, covering Stirling, Clackmannanshire and Falkirk councils. I am chair of the SAA’s electoral registration committee. The committee is made up of the 15 Scottish electoral registration officers and their senior staff. The purpose of the committee is to be a consultative body and to ensure consistency of practice across Scotland in electoral registration matters. I am also a member of the Electoral Management Board for Scotland.

Chris Highcock (Electoral Management Board for Scotland)

I am deputy returning officer for the City of Edinburgh Council. In that role, I support the Electoral Management Board for Scotland as secretary. The EMB supports and co-ordinates the work of electoral registration officers and returning officers in Scotland. It was established under the Local Electoral Administration (Scotland) Act 2011 with the aim of co-ordinating that work, developing best practice and keeping everything consistent across Scotland. The convener of the EMB was appointed as chief counting officer for the Scottish independence referendum in 2014 so, in effect, the EMB project managed and oversaw the delivery of the 2014 referendum.

Andy Hunter (Association of Electoral Administrators)

The Association of Electoral Administrators is a non-governmental, non-partisan body that represents members who work in electoral administration across the United Kingdom. It has just under 2,000 members across the UK and it is divided into branches. As the convener said, I am the chair of the Scotland and Northern Ireland branch. Essentially, the organisation’s role is to support its members and their interests so that they are able to deliver electoral administration well in a safe environment.

The Convener

Thank you. It is very helpful to have an outline of the roles of the different organisations. Do the organisations that the panel members represent agree with the policy intent of the bill? If they do, can the panel members explain why?

Pete Wildman

Speaking for the SAA and the EROs, I can say that we welcome the framework approach to referendums, which means that there will be one set of legislation to govern all referendums in Scotland. It allows for consistency—it avoids individual bills being introduced and, therefore, potential variation between one referendum and another. The fundamental approach of having a framework agreement is welcome.

Chris Highcock

I agree with that. The EMB sees its role very much as making sure that electoral events are operated in the interests of the voter. As Pete Wildman said, the UK has a history of fragmented and piecemeal electoral legislation. Often, new legislation needs to be introduced for the delivery of each event.

The more consistency can be brought into the electoral process, the better. It is to the advantage of the voters, the administrators, the campaigners and the political parties that may be involved in electoral events. To the extent that the bill is introducing a consistent, simpler framework, we support that policy direction.

Andy Hunter

I concur with those points and emphasise the need for consistency. Particularly for our members, having that framework makes it easier for them to deliver effectively to a high standard on a regular basis.

Mark Conaghan

Consistency and, most of all, notice, are the important things for those of us who are trying to organise elections on a day-to-day basis.

The Convener

There is a bit of a danger in the process that we are involved in that we might view the bill through the prism of one particular polling event—the potential indyref 2. We could lose sight of some of the flexibility and end up amending the bill to address concerns about a specific referendum, which could inadvertently undermine the policy intention of having this framework legislation in the first place. Does the panel share those concerns?

Mark Conaghan

The point that all of us probably agree on is that it is good to have a template, so that we know how any referendum that is going to be run in Scotland under the jurisdiction of the Scottish Parliament will be run. It means that we would have a set of rules that we can work to, we would know exactly what is happening and there would not be changes from referendum to referendum. To that extent, it is helpful.

Pete Wildman

I agree. For us, it is about certainty in planning and delivering elections, particularly for electoral registrations, so that we know exactly what the franchise will be and how it will operate. The certainty that that brings is important.

Chris Highcock

As Mark Conaghan mentioned, one of the key things that we would look for in all electoral events is time. The bill should not focus on a single event and, if it is intended to apply to different events, we need to have adequate time to prepare for those events, in order to identify the guidance and other resources that are needed to deliver them. Therefore, the bill should not be seen as focusing on a single question.

Andy Hunter

I concur with that and have no further points.

The Convener

Given that we have got into this area, would Adam Tomkins like to pick up on potential inconsistency in the legislation?

Adam Tomkins (Glasgow) (Con)

Yes, I want to pick up on the question of consistency, which the panel has already landed on. Mark Conaghan and Chris Highcock said that consistency and timing are the two most important things. Other members will ask about timing in due course, but I will focus on the question of consistency. To what extent should we be concerned with inconsistencies between the bill and the UK equivalent legislation, the Political Parties, Elections and Referendums Act 2000?

Mark Conaghan

From the point of view of administrators, we are looking for a consistent set of rules to run to. To that extent, it is not a concern for us whether the bill is consistent or inconsistent with the equivalent legislation of the UK Parliament. The issue for us is that, when we have a referendum to run, we know what the rules are. If it is envisaged that more than one referendum will come from the Scottish Parliament, which could be on many different issues, it would be good from our point of view to have a consistent set of rules.

Under the equivalent legislation from the UK Parliament, a set of rules still has to be published for whatever referendum is conducted. The last referendum that we had to deal with was the European Union referendum, and before that it was the alternative vote referendum, which I think was in 2011. As far as I recall, the rules for those two referendums were not the same, so there was no consistency coming from the UK Parliament in that regard. If we have a set of detailed rules, as set out in the bill, that is helpful for us.

Chris Highcock

That is right. As administrators, returning officers and electoral administrators will deliver the electoral events in accordance with the rules that are laid down in the legislation. In some ways it is beyond our remit to comment on the policy of whether it is a good or a bad thing to have differences between the UK and Scotland. We will do what the legislation says.

In terms of convenience and having rules that are clearly intelligible and understood by those who are delivering the event, it is obviously helpful to have things the same from event to event.

Andy Hunter

On consistency, it would be ideal if it was exactly the same across the whole UK for all events, but, as Chris Highcock said, the administrators will deliver what is in front of them. Adam Tomkins mentioned timing, and consistency would help with that. If the rules are going to be slightly different, advance warning and time to prepare would be big advantages.

Adam Tomkins

Pete Wildman, would you like to answer?

Pete Wildman

No. I think that electoral registration and PPERA are slightly separate matters.

Adam Tomkins

That is very helpful. Mr Highcock and Mr Hunter said that it would be ideal, or helpful, to have the same rules from event to event, whether they are authorised by an act of the Scottish Parliament or the UK Parliament. It is notable that one of the principal differences between the bill and PPERA as enacted in Westminster is the vastly greater degree of ministerial discretion that the bill would confer on ministers to set questions, bypassing the Electoral Commission, and to make rules by order, rather than by primary legislation, on questions, subject matters for referendums, periods of time and so on and so forth. Although that flexibility may be convenient from a ministerial perspective, it is unhelpful—or not ideal—from an administrative perspective. Would that be fair to say?

09:45  

Chris Highcock

I think that that would be stretching into policy matters around the bill that might be outwith our concern. We will deliver what the law says. In terms of what is helpful, the ideal is that we have as much time as possible to prepare guidance and the approach that we will take in doing so. The longer we have in preparation, the better. A number of people have referenced the Gould principle that any changes need to be in place at least six months ahead of the event taking place. Reference has also been made to the Venice commission, which talks about the rules being clear 12 months ahead of any event. Consistency is very helpful because it increases the understanding of all those taking part, including the campaigners, the voters and the regulators, but we will do what the legislation tells us.

Pete Wildman

Having certainty ahead of the event on what the rules are and how it is going to run is key.

Mark Conaghan

From our point of view, it would be ideal if the rules were the same for any referendum, whether it is a UK or a Scottish referendum. For UK referendums, we would still expect to see ministers publishing secondary legislation to set out the defined specific rules for any referendum that happens under the UK Parliament’s remit. That is what happened with the EU referendum, for which there was a set of secondary legislation that set the rules.

Adam Tomkins

But it did not set the referendum question.

Mark Conaghan

No, it did not set the referendum question. We have to apply the rules; the question is a matter for politicians. All we are interested in with the question is what we have to put on the ballot paper. Once we know the format of the ballot paper, it is the rules that we are interested in.

The other observation that I would make on the EU referendum is that we ended up with secondary legislation that was rushed through at the point of the close of registration due to the difficulties with the registration site crashing. There was secondary legislation passed in the middle of the referendum period.

Adam Tomkins

Thank you.

The Convener

Other members have raised issues of timing; Murdo Fraser has asked about that previously.

Tom Arthur (Renfrewshire South) (SNP)

I have two brief supplementary questions. Could you outline the differences between PPERA and the Referendums (Scotland) Bill, in terms of the amount of detail that is specified on operational matters? My understanding is that the EU Referendum Bill ran to more than 60 pages, and a lot of the detail was bespoke for that referendum. For the committee’s benefit, could you briefly outline the differences in the amount of detail that is specified in PPERA and in the bill?

Pete Wildman

Certainly. In terms of electoral registration, there is more detail in the Referendums (Scotland) Bill than there is in PPERA. PPERA sets the framework for how a referendum should be conducted in the UK, but the detail on cut-off for postal votes and things like that comes in legislation for each particular event.

Andy Hunter

Yes, I agree. PPERA is higher level and the detail comes from the secondary legislation. I think that that is what drives the issues of consistency, because that legislation is written every time for each event, so there is much more room for variance. The bill will probably make it more likely that it will be consistent across the board.

Mark Conaghan

I would have to go back and look again at PPERA. It is not my recollection that it has, for example, detailed rules on how postal votes are to be dealt with or the particular periods for the electoral process or dates and so on. That is set out in the bill which, to that extent, gives us a more detailed platform from which to work. It is still subject to ministerial changes that might come at a later date.

Tom Arthur

I have a second brief supplementary question. Reference was made to variation between Scotland-specific and UK-wide referendum events. Is it not just a reality of devolution that you have to adapt? For example, you are charged with delivering elections to the UK Parliament and the Scottish Parliament, which have different methods of voting and different franchises. Does this create an insurmountable barrier for you?

Mark Conaghan

Again, nothing is insurmountable, provided that we have sufficient resources, time and warning. Every election that we deal with—be it the Scottish Parliament, UK Parliament or local government elections—has different rules applied to it. One of our frustrations is that there is not a common set of rules or approach. Things change from event to event. In some cases they change in ways that make it difficult to understand why there are differences.

We can apply different rules, but the point is that we need enough notice to prepare, based on the changes or different rules for each event. We can deal with it, but if the changes are happening or the rules are issued close to the event, it eats into our preparation time and makes it difficult for us—hence the reference to the need for six months.

Pete Wildman

It is not just about our preparation time. It is also about engaging with the public so that the nature of the franchise, who can register to vote and the cut-off dates for that are very clear. It is also about getting that messaging out early to ensure that the public are fully informed and advised of the rules around which the election is conducted.

Mark Conaghan

That is no doubt the point on which the Electoral Commission will comment when it gives evidence later. It prepares detailed guidance for electoral returning officers, candidates and agents and, in the case of a referendum, for designated groups. It has to do that and, if the period running up to an election is shorter than six months, it becomes very difficult. You will find that the guidance that is issued will perhaps come out without the statutory references. For example, it is harder for them to produce associated paperwork and templates that people can use. It truncates the period and creates issues.

Chris Highcock

For the 2014 Scottish independence referendum, the chief counting officer was responsible for the production of guidance. To return to Mark Conaghan’s comments, that was a large task; a huge amount of work went into producing the guidance, so that electoral registration officers, deputy returning officers and electoral administrators knew exactly how to interpret the legislation and what they had to do, step by step, to deliver the referendum. That took a lot of time, and whoever is charged with delivering guidance for a referendum will need time to so that, particularly if it is used for a variety of different referendums.

The guidance that might be applied to an independence referendum would potentially be quite different from the guidance that might be applied to other events. The question is how that guidance is produced, updated and hosted. We are moving away from big booklets of guidance to have much more material online. That is key to supporting the referendum process.

Andy Hunter

Chris Highcock is probably right. There will always be some differences. The real difficulty will come if there are ever events on the same day. If we decide to have a referendum when there is another UK-wide event, that would lead to a different franchise situation. Such events are extremely difficult, although, as Mark Conaghan said, usually they are not insurmountable. However, they add a lot of stress and difficulty. Again—we sound like a broken record—it is best to avoid that and to time events so that they arrive when there is nothing else going on.

The Convener

We got into a fair number of timing issues there. Does Murdo Fraser want to take on that area of questioning?

Murdo Fraser (Mid Scotland and Fife) (Con)

I have a couple of follow-up questions on timing, which we have touched on. The Gould principle of six months’ notice has already been referred to. However, the last two electoral events that we have had in Scotland, which were the 2017 general election and the European Parliament election, were conducted in much shorter timeframes of, I think, five weeks and six weeks respectively. I appreciate that you would like more time, if possible, but how essential is it to have that period of six months for a referendum?

Pete Wildman

In the European Parliament election, the issues for us as electoral registration officers were the registration of EU citizens and the timescales in which they had to respond once the election was set to go ahead. There was pressure on us to contact everybody; there was also pressure in the timescales for the electors to engage with the process. A short election can be delivered and will be delivered, but some of the risks change. The shorter the notice that we have, the greater the risk that something may not run as smoothly as we would like.

Chris Highcock

We are talking about what would be ideal and what we would like to be in place in order to deliver the gold standard of an electoral event. We want as much notice as possible to ensure that people are fully aware of the rules and what they need to do to take part. We should remember where the Gould principle came from—it was in response to what happened in 2007 when rule changes took place close to the event and as a consequence there were problems in the delivery of that event.

Mark Conaghan

Murdo Fraser referred to two particular electoral events. The rules for a UK general election are well established, and therefore we knew about the practicalities of what we had to do in advance for the 2017 general election. Equally, the Electoral Commission was able to go back to the guidance from two years before—the guidance did not need any changes because there had been no legislative changes. The EU election was perhaps more problematic because, to some extent, it came out of the blue and, given the circumstances, we had been operating on the assumption that there would be no election at all. Again, we were able to go back to the rules from five years before, which had already been established, and run the election following those.

If we take a bespoke event, such as a referendum, it is obviously better to have the rules in advance, rather than for them to be sprung on the electoral community six or seven weeks away from a poll.

Andy Hunter

Short notice—particularly where there are legislative changes or new developments—adds a lot of stresses for the administrators who deliver the event, which leads to further risks in relation to not only their health and welfare, but the delivery and integrity of the election.

Murdo Fraser

Thank you. That was very helpful and you have all been very clear in your answers.

At what point should the six months start? Should it start from the point at which the Parliament approves a statutory instrument that sets out in detail issues such as the franchise, the wording of the question, the period of the campaign and so on, or from some other point?

Mark Conaghan

As administrators considering timings, we start from the date of the poll and work backwards, and that is what I would be looking for—that would be my assumption. If we know the date of a poll and the rules under which we have to conduct it, other aspects can still be determined. We would be looking for that six-month period where we know how we have to run the event and what the guidance will look like—or we have a chance to put it together. That gives us an opportunity to consider the registration rules and so on.

Pete Wildman

For the electoral registration officers, six months from the date of the poll would allow sufficient time for people to be aware that they can register and for them to register.

Chris Highcock

The Gould report clearly defined the period; the phrasing that it used was:

“electoral legislation cannot be applied to any election held within six months of the new provision coming into force.”

However, in practical terms, it is a case of being clear about what is happening six months in advance.

Andy Hunter

I concur with those points.

The Convener

This is an interesting area. At a previous meeting, we had evidence from Dr Alan Renwick about how rules will be established. I do not know whether you managed to read the evidence; it is not all black and white. Dr Renwick said:

“if all the rules are in place and the only matters to be decided subsequently are the question and the date, the Gould principle would not be broken by setting a referendum somewhat less than six months in advance of the poll.”—[Official Report, Finance and Constitution Committee, 4 September 2019; c 2.]

If the bill is enacted, and given that we have a framework, is that a reasonable point?

10:00  

Chris Highcock

As we have said, the time period is not just about what is in the interests of the administrator; it is also about what is in the interests of the voter. The EMB would always come back to ask what is in the interests of the voter. We need to make sure that, when the electoral event is delivered, we think about the interests of the voter and not just about our interests. That is why we go back to the period of time in Gould, which is as much about making sure that the voter is prepared for the event as it is about making sure that we are prepared.

Mark Conaghan

From the point of view of an administrator, if the two outstanding matters are the date of the poll and the question, the key issue is the date of the poll. As long as we have the question to go on the ballot paper sufficiently in advance of polling day, the wording of the question is not a concern for us. The decision on that could made considerably closer to the date of the poll.

In the current system for elections, until nominations close, we do not know who the candidates are. We can produce ballot papers only at the point when we know who they are, so we are used to producing ballot papers at relatively short notice. To that extent, if the wording of the question was in dispute, a decision on that could be made closer to the end of the six-month period.

However, it would not be helpful to us if we knew that there was going to be a poll in, say, June, but we were not told what date in June. We need to know the specific date, because that sets the timetable for everything else. It also relates to practical issues of staff recruitment and booking polling places and count venues. All that planning needs to be done as far in advance as possible.

The Convener

No one has anything further to add, so I will move on.

The issue of the question has been raised. Given the witnesses’ respective areas of interest, I am not sure how much they will be able to go into that area, but Alexander Burnett has a question.

Alexander Burnett (Aberdeenshire West) (Con)

I appreciate that this is not within the witnesses’ remit, but do they have a view on question testing and the role of the Electoral Commission?

Pete Wildman

That is a policy matter on which the SAA would not offer a view.

Chris Highcock

I agree that it is a policy matter. We will put whatever we are told to put on the ballot paper. [Laughter.]

Mark Conaghan

In blunt terms, that is the position. You tell us what to poll on and we go and poll.

Alexander Burnett

You have all mentioned consistency in relation to the bill. Would question testing apply to all questions, including one that had been previously asked?

Chris Highcock

Again, that is a policy matter, which I will not get into.

Patrick Harvie (Glasgow) (Green)

The witnesses will be aware that, in relation to referendums and democracy generally, there has been a significant amount of debate about accountability and donations. Enforcement of those rules is not a matter for any of your bodies but some of our witnesses have suggested that a single national database of electors would make it easier for campaign bodies to check the permissibility of donations—those electors being permissible donors. What are your views on the desirability of such a database? Might problems arise from a mismatch between the national database and locally held registers?

An alternative came up in discussion: we could require local registers to be held and published in the same format, which would make it technically easier for campaign bodies to use the data that they contain to check the permissibility of donations. That suggestion was brought up previously but was never progressed.

What are your views on either of those options?

Pete Wildman

How the published printed copy of the register is set out—by parliamentary constituency and polling district—is laid down by the law. The order is set out so that there is consistency in the printed document. The issue arises because not many people require the printed document; people tend to use data exports.

The reports that I have seen are UK-wide reports, rather than Scotland-wide ones. There is a difference in the structure in Scotland, because there are 32 local authorities but only 15 electoral registration officers. Most of us serve more than one council area, so there are fewer people to contact. Also, there are only four electoral management systems in use in Scotland. I took the opportunity to have a look at data exports from each of them and found that there is a degree of variation but nothing significant. The basic data is the same, but the columns are in a slightly different order and the headings are slightly different, with some containing a bit more information than others. It is perfectly possible to produce a standard export from them. What is required is agreement on the standard—the ordering and naming of the columns, basically—and on who would pay for the software development.

Groups are entitled to access the register to check donations; they are also entitled to use it for electoral purposes. With regard to data protection, an advantage of the current system is that the data is transferred from one data controller to another. It is important to note that the electoral registration officer, not the local authority, is the data controller for the register, so in transferring data to a third party, they take responsibility for data protection.

If you were to set up a national database, you would have to get feeds from all the local databases and somebody would have to be the data controller and manage access to it. It could become quite a bureaucratic and costly process to achieve that aim. I can see the argument for a more standard format for data export but I am not certain that a national database would provide that. Political parties are certainly able to produce national datasets, so the issue is more about individuals.

Patrick Harvie

Political parties and large campaign bodies face fewer problems with that because they have the resources to spend time and energy on it. If we want smaller campaign bodies to be able to easily comply with the donations rules, can we achieve some consistency?

Pete Wildman

Yes—although somebody would need to decide who would meet the cost of development.

Patrick Harvie

Who would have responsibility for that? Who is in a position to say that they have that authority?

Pete Wildman

That is one of the questions that perhaps explains why a national database has not proceeded elsewhere.

Patrick Harvie

There are some other nodding heads.

Mark Conaghan

What Pete Wildman is setting out is that a national body would have to be created for the ingathering and control of that information, and it is difficult to see how that could be done without primary legislation. If all that is sought is consistent formatting to make things easier for political parties or groups, some work would need to be done on the software to achieve that, as Pete indicated, from which a cost would arise. However, if all the data were to be pulled into a single place to which parties or groups would go to get information, somebody would have to create a body with the statutory power, or give an existing body the statutory power, to pull in the data and deal with the data protection issues that arise.

Patrick Harvie

Achieving consistency in formatting at a local level would have a lower cost than creating a new body.

Pete Wildman

Yes. The SAA—the 15 of us—would be more than happy to engage with people and work out how to do it. It would be harder to justify who should fund the work because, as electoral registration officers, we already deliver our duty to supply a data format of the register. It does not seem reasonable for us to have to fund standardising the format, too

Patrick Harvie

One of the reasons why I was uncomfortable with the idea of a national database—albeit that witnesses have suggested that that is not the way to go—is the potential unintended consequence of an undermining of trust. People react against the idea of their name being held in too many places, as we have seen in relation to the national identity register and other schemes.

Trust is hugely important. I feel that we have a trustworthy electoral system in this country. We also have a very polarised political culture at the moment, in which trust in facts and expertise is being deliberately undermined. In between elections, are electoral administrators doing, or considering doing, anything to build trust or consider how the process can be more transparent and more easily understood by members of the public?

Chris Highcock

We agree that confidence in the electoral process is fundamental. We often say that confidence is the currency of elections. People need to trust the result. In 2014, the objective of the chief accounting officer was to deliver a result that would be trusted as accurate.

Confidence comes from trust in the individuals who deliver and are involved in the process. We have a role in trying to engender and encourage confidence, throughout the process. As you said, we are operating in an increasingly polarised atmosphere. Because of that, the scrutiny levels that we face in electoral events are extreme. We are often asked to prove a negative, which is impossible. We are told to prove that there was not some strange cyberconspiracy, and there is a limit to what we can do to prove that. That is where we rely on other people, including politicians and campaigners, to uphold trust in the process.

We are considering whether we need experts in cybersecurity to provide assurance on the security of the process—things such as the printing, the register and postal vote verification. That would involve additional resource; we are not currently resourced for the degree of cybersecurity that we might have to have in future.

Beyond that, the tasks that we undertake day by day as electoral administrators focus on transparency throughout the process. That is built into the legislation and is delivered in all elections. People are free to come along and watch processes in elections. There are electoral observers, and the Electoral Commission is there to monitor and report on things. The candidates and electoral observers are there to provide scrutiny of the process.

We do things ourselves to promote transparency. We also rely on the people who are there to witness elections to promote transparency and support our efforts to deliver confidence.

Pete Wildman

Electoral registration officers take cybersecurity extremely seriously. We are connected to the public secure network and therefore we meet high standards, to ensure continued compliance. We work with the cyber essentials scheme and the cyberresilience framework. The issue is high on all EROs’ risk list.

One of the advantages of having 15 databases, as opposed to a single database, is dispersal.

Chris Highcock

We are picking up on efforts around the United Kingdom and indeed around the world to view electoral administration as critical national infrastructure for the security of the civic life of the nation, in the same way as the power supply and water supply are viewed.

We take those responsibilities seriously and are constantly looking at what we can do to promote confidence. If the voter does not have confidence in what administrators are doing, it is game over. We need to keep that in sight all the time.

Mark Conaghan

One of the lessons that was learned from the Scottish independence referendum was about the nature of some of the conspiracy theories that grew up in the hours and days after the event: most of them were based simply on a lack of knowledge of how the system operates. I think that we all recognise that there is more that we can do in advance to explain and publicise the process, so that people understand it.

I give a simple example. I recall seeing videos that people had put up that showed ballot boxes being emptied. People were saying, “There are votes that are already bundled. Oh my god, they have been interfered with.” No: they were postal votes. Postal votes are processed and bundled, and then put in a sealed ballot box and kept until the day of the count.

If we put more of that information online and talk about it in advance, perhaps that would assist people’s understanding and they would not have such concerns. There is possibly more that we can do to explain the process better, particularly in the run-up to major events such as an independence referendum.

10:15  

Chris Highcock

It comes back to what Mark Conaghan said about the need for time ahead of a referendum. I came to Parliament after the independence referendum to talk about how the difficulty with some of those conspiracy theories was that there were ignorance gaps. People were ignorant of the process and they filled in the gaps with their own assumptions. The more time that we have ahead of a referendum, particularly if it is on a contentious issue, the more we can fill in those ignorance gaps and ensure that voters are knowledgeable about the process that is being applied.

The Convener

Why wait? Why not do it now?

Chris Highcock

We can, and we try to, but the attention that someone will pay to the technicalities of the postal vote process when nothing is imminent may be limited.

The Convener

Fair point—I surrender.

Gordon MacDonald (Edinburgh Pentlands) (SNP)

I want to look at a couple of areas, the first of which is voter registration. We heard in evidence last week that up to 8 million people across the UK either may be missing entirely from the electoral register or may have been incorrectly registered. The Office for National Statistics produced a report earlier this year, which highlights that 65 per cent of council wards in Scotland have seen a drop-off in voter registration. What are the difficulties with voter registration and what underlies that drop?

Pete Wildman

One of the things to understand is that electoral registration is a voluntary matter. It is up to the citizen to engage with the process or not. It is not a compulsory system, unlike in some other countries, and registration levels will vary over time; they rise and fall. Back in 2014, ahead of the independence referendum, it was reported that we achieved 97 per cent registration levels. The public really engaged with that event and we saw very high levels of registration. Not only were people registering, campaign groups were getting out there, registering people and pushing the message.

Registration levels will vary. You mentioned the change that occurred in 2018, but there was no major electoral event in Scotland during that year and I am sure that that played in. The difference is small. There was a drop but it was 0.4 or 0.6 per cent between the different registers. That is disappointing, but it is not a significant drop. During the financial year 2018-19, we added 230,000 people to the register across Scotland, deleted 245,000 and made 31,000 changes.

Registration is not just for an electoral event. Those events push and promote registration, but it is a year-round activity. We are constantly inviting people to register, doing an annual canvass, which identifies new people, and using data sources such as council tax, university and schools lists to invite unregistered people to register. However, that relies on the person engaging. Harder-to-reach groups include people in the private rented sector. When people are in short-term accommodation they do not necessarily have a connection to the area that they are in. Those people will, perhaps, wait until a poll is called before registering. We do our best, but there will always be a peak in registrations at that time.

If we look at the UK general election in 2017, there were about 600,000 applications on the last day across the UK. In Scotland, which normally has about 10 per cent of the UK electorate—we have an electorate of just over 4 million compared with a peak 4.6 million—we had about 30,000 on the last day. That shows that Scotland gets fewer applications at the last minute.

Gordon MacDonald

As you said, many European countries have compulsory voter registration. I realise that the procedures are reserved to Westminster, but is there any way that we can improve voter registration? For example, could we use changes in tenancy for people in the private rented sector, or contact people when house sales take place or national insurance cards are issued?

Pete Wildman

We do a fair amount. In some other European countries, as you mentioned, there is compulsory registration and people cannot access public services unless they have registered. That would be quite a cultural change for the UK. However, we are proactive in going out there.

We could look at a form of automatic registration whereby, if we have a data set, we could add people to the register. However, there would be a risk with that, because no data set is 100 per cent accurate and there would be currency issues. We could add people to the register who should not be on it. It is not just about the completeness of the register; it is also about accuracy. If we had high registration levels but poor accuracy, we would not have a good register. It is a double-edged thing.

We could look at national insurance numbers, but because the registration process starts at a younger age in Scotland, we find it more effective to make contact through schools. Perhaps schools could do more work on promotion. We have had good working relationships with schools across Scotland and the toolkits that the Electoral Commission has produced over the years have been really effective. I would like the democracy cookbook that it produced to be digitised and updated because, if we give educators a resource that they can use, they tend to run with that and deal with it effectively.

Gordon MacDonald

In the EU referendum, there was a crash of the UK Government’s website for voter registration. Was there any impact on Scotland when that happened?

Pete Wildman

It was a tricky time, because there was a degree of uncertainty. At about 10 o’clock in the evening, we began to realise that things were not running smoothly. There was a period when it was uncertain whether the deadline would be extended. There were relatively few applications after it was extended; I think that that was because the failure came at cut-off. I am assured that the UK Government has taken steps to replatform and boost the resilience of the online service.

Picking up on another point that was made, I note that local government registration is devolved to the Scottish Parliament. It is UK parliamentary registration that is reserved. We could operate two different systems, but that would be fraught with difficulty. If we had, say, automated registration in Scotland and individual registration for the UK, we would find that people had to register twice because the two systems are not compatible, and we really do not want that. We want to have a system whereby, if people register for local government, they can automatically go on to the parliamentary register as well.

Mark Conaghan

The duties of registration lie with electoral registration officers. However, for some events, returning officers will be given specific tasks to do with voter engagement, and part of voter engagement is registration.

I hate to return to the timing of events, but a clear indication that something will slip or disappear entirely is that the period before the event in question is short. For the independence referendum, we knew the date well in advance and returning officers were given the specific task of promoting voter engagement. We knew that 16 and 17-year-olds were going to be voting, and in my area, which is Renfrewshire, we went out to the schools and engaged with all the children in that age group, taking them through what was involved in the voting process. With colleagues from our local ERO, we then sought to give them registration forms so that they had the option to register there and then. We took the forms away and processed them. That significantly boosted the registration among that group of people—the 16 and 17-year-olds—for that event, and it gave them electoral knowledge.

That is what happens if we have time. If you give us three months’ warning of a poll, that will not happen, because there will not be enough time to make arrangements to get into the schools and do that at the same time as running the event. If we have a run-up, we can do it.

On private rented accommodation, houses in multiple occupation in particular create an issue. One of the tasks that we complete in the run-up to an election is that we write to HMO landlords, reminding them that there is an electoral event coming up, asking them to raise the question of registration with their tenants and referring them to their local ERO. We do similar work with care homes.

That is all the additional stuff that has no statutory basis. There is no requirement for us to do that, but we do it if we have the time available. If we do not have the time, and the event is compressed, that is the kind of thing that gets put to one side and does not happen. That is one of the reasons why it is in our interests to have as much time as possible before any event.

Andy Hunter

Mark Conaghan is referring to the time and the resources that are needed to do some of these things. As well as that, there are difficulties for some of the local authorities and the EROs with regard to the necessary skill set. Having a standard template that can be applied locally—such as the democracy cookbook for schools that Pete Wildman referred to earlier—makes it easier for people to achieve the necessary publicity and engagement. There are benefits for everybody.

Pete Wildman

When we engage with schools, they are more than happy to do the work, but they ask what we would like them to do. Being able to give schools a toolkit from the Electoral Commission to provide them with a framework is of assistance.

Chris Highcock

In 2014, a lot of work was done by education authorities and those who were developing the syllabuses for young people. Again, that relied on people having knowledge of the event well in advance, so that that could be built into syllabuses and lesson plans and teachers could talk about the issues.

The Convener

I have a question that I will ask in order to get a point on the record. At our previous meeting, an academic said:

“It is widely thought that one of the effects of individual electoral registration has been a reduction in the completeness of the electoral register.”—[Official Report, Finance and Constitution Committee, 11 September; c 35.]

Is that your experience?

Pete Wildman

Registration numbers have dropped in the past year but, on the whole, they have remained relatively static since the introduction of IER. The Electoral Commission is doing a study on completeness and accuracy. The last time that it did that was in 2015. I think that we will wait with interest to see what that result shows when it is published.

The Convener

That appears to be the view of the other witnesses, so there is no point in asking everyone else to comment.

John Mason (Glasgow Shettleston) (SNP)

The submission from the Association of Electoral Administrators discusses the issue of having more than one poll on one day and suggests that

“Any polls coinciding in the same area on the same day must be combined, but with an upper limit on the number of polls being allowed to take place on any one day.”

Is that a practical issue? Is it to do with voter confusion? Is it just that the ideal position is to have things on separate days?

Andy Hunter

It covers a few areas. For administrators, having more than one type of event on the same day adds to the pressures and difficulties in relation to resources. There is also an effect on voters, as there can be some confusion, particularly if the events involve different franchises—people might be able to vote in one poll and not the other, and there are practical issues around how that would be managed on the day.

The quotation that you read out is an extract from a UK-wide report. The issue is less pronounced in Scotland but, in some areas of England and Wales, four or five different events have taken place on the same day. When you get to that level, it adds to the confusion and difficulty.

John Mason

What is the most that we have had in Scotland? Was it the three papers—two for the Scottish Parliament and one for local government—that people were given in 2007?

Mark Conaghan

In 2011, the AV referendum and the Scottish Parliament elections were combined.

Andy Hunter

I am not sure whether any by-elections were run on the same day as that, but if there was also a by-election some people might have been given four papers.

John Mason

Is there a cost element to that? One might think that it is cheaper to run three or four things on the one day, because you only have to hire the school once and pay staff once.

Andy Hunter

There are some efficiencies around hiring the halls and so on, yes. However, more staff are needed, which means that the staff costs are greater than they are for a single poll.

10:30  

Mark Conaghan

If polls are separated out entirely, you have to employ polling staff twice and book your venues twice, so the cost of two separate events is higher than the cost of a combined event. However, the cost of a combined event is significantly higher than the cost of one event. Significant practical issues are also raised, along with difficulty for the voters and legal issues.

If we combined the UK general election, for which 18-year-olds have the franchise, with a referendum that has a franchise including 16-year-olds, would we have two separate electoral registers? We would probably have to, and that would cause confusion for staff around which register to mark off or having to mark both. It would create issues for voters because of how the papers would be marked and which ballot box the papers should be put in.

At the count for the 2011 AV referendum, we opened up the first ballot box to verify the contents—it was the Scottish Parliament constituency vote—and came to a total that was slightly different from what the presiding officer had told us. We then opened up the box for the list vote, and came to a slightly different figure from what the presiding officer had told us. We then opened up the third ballot box, which was for the AV referendum, and found papers from all three ballots. That caused a lot of confusion on the night. I cannot speak for others, but we had to stop and change our count process on the night to deal with it. We were doing one count at a time, but when the situation became clear we had to open all three boxes and distribute them across three count tables to make sure that we did not have that problem.

The franchise issue is a real concern. If there is a mixed franchise, the law for one election says that nobody under 18 years of age should be in the polling place, but 16-year-olds would be entitled to vote in the other election. Would we have to have two separate polling places?

John Mason

Has that happened so far?

Mark Conaghan

It has not happened yet, but it could.

John Mason

I get that.

Mark Conaghan

It might have happened at a by-election or in local government.

Our only concern on that would be if there was a combined vote with the UK Parliament—the only one for which the franchise is over 18s—unless we had a UK-wide referendum.

John Mason

Yes. I think that we had Scottish Parliament by-elections on the same day as a UK general election in Berwickshire.

Mark Conaghan

Yes.

John Mason

Is the cost of running a referendum much the same as that of running a general election?

Mark Conaghan

It is very similar. The only process saving for us is that there are no nominations to deal with. That is dealt with by key election staff. The costs of the count and the polling stations are very similar.

For the independence referendum, we expected a much higher turnout than we would expect at any other electoral event. We staffed up accordingly, so the costs were higher.

John Mason

My final question is for Chris Highcock and the Electoral Management Board for Scotland. Your submission mentions adequate resourcing several times and says that, in 2014, there was adequate resourcing.

Chris Highcock

Yes.

John Mason

Have there been other situations in which there was not adequate resourcing?

Chris Highcock

The returning officers would always say that, although money is given to returning officers to deliver at elections, it does not cover all the costs that are involved in delivering elections and local authorities constantly subsidise national electoral events.

Resourcing is a key issue. It is partly about finance but time is also a key resource. The resourcing needs to be adequate in order for us to deliver. The framework that is being created by the bill is necessary as a consistent legal framework, but it is not sufficient. We also need the money, resources, people, expertise and time.

John Mason

Do we just need to bear that in mind, or should it be included in the bill?

Chris Highcock

It is addressed in the financial memorandum, so we need to make sure that adequate resources, including time, are included.

The Convener

Could you just confirm that you are content with the costs that are laid out in the financial memorandum?

Chris Highcock

The comment that we made is that the financial memorandum also needs to address the costs of EROs, which I do not think are adequately resourced at the moment.

Pete Wildman

I was going to make that point. The costs will vary from one event to another. For the independence referendum, when we saw very high registration levels, the costs for electoral registration officers were significant. My team was working overtime from July, as registrations peaked and peaked. In the final week, my whole office stopped doing valuation work—my whole organisation was dealing with electoral registrations, which involved an unprecedented, and significant, level of resource and costs. The costs will vary from one election to another.

Chris Highcock

I return to the question that John Mason asked about events being held on the same day. In the call for evidence, there were questions about learning lessons from the past and whether the bill is consistent with good practice. If we go back to 2007, one of the key points of Gould was to decouple electoral events, to make sure that each one is given the priority that it deserves and the right amount of attention in the eyes of the voter. That way, there is no confusion, not only about how to take part, but about which of the events is more important and how the issues of each event could affect a person’s vote.

John Mason

Would you be happy to have different votes on three Thursdays in a row?

Chris Highcock

That is a separate question.

Mark Conaghan

That would be stretching the meaning of the word “happy” to its absolute limits.

The Convener

No other members are indicating that they want to ask questions, so I thank our witnesses warmly for coming along and giving us helpful evidence this morning.

10:36 Meeting suspended.  

10:42 On resuming—  

The Convener

We now commence this morning’s second evidence session on the Referendums (Scotland) Bill, in which we will hear from representatives of the Electoral Commission. I welcome to the meeting Dame Susan Bruce, the electoral commissioner for Scotland; Bob Posner chief executive of the Electoral Commission; and Andy O’Neill, head of the commission’s Scotland office. I thank them very much for providing the committee with the written evidence that we have received from them.

I will begin our session by asking whether panel members agree with the policy intent of the bill. If so, why is that? If not, why not?

Dame Sue Bruce (Electoral Commission)

The Electoral Commission Scotland is very keen to see a bill to deal with future referenda and has argued for that in the wider UK context. Such a bill would help to give clarity and guidance on the conduct of future referenda and would provide an opportunity to establish a framework for questions that might be asked in the future on any referendum subject. It would also help to provide the electorate and the Parliament with assurance and confidence on the holding of referenda. All in all, we support the direction of travel that is represented in the bill.

The Convener

Okay, now let us get down to the nitty-gritty of some of the issues. Murdo Fraser, will you kick off, please?

Murdo Fraser

I want to start by looking at the regulation of campaigns and the fines that you might be able to levy, both of which are issues that you raised in your submission. I noticed that you suggested that you would want to see the maximum fine increased to £500,000. Campaign organisations that are permitted participants are able to spend only up to £150,000. In that context, how realistic might that level of fine be and how enforceable would it be in practice?

10:45  

Bob Posner (Electoral Commission)

Our starting point—and I am sure that it is your starting point as well—is that we all want well-run referendums and well-run elections so that voters have confidence in the legitimacy of the results.

What regulatory rules are appropriate and what deterrents—what sanctions—should we build into the system? Our prime aim is compliance. When we work with campaigners and political parties, our prime aim is to enable them to comply with the rules. We need suitable deterrents that make people think that it is not worth breaking the rules. There is that phrase about the cost of doing business, and there is a huge prize of an election or referendum result. You need that level of deterrent so that people think that is not worth breaking the rules. If people break the rules, we need to think about how to enable law enforcement agencies, including the Electoral Commission, to enforce those rules and, where appropriate, to apply proportionate sanctions.

If we look at the history of the sanctions and fining regime, we see that our organisation has been able to impose fines for breaches since legislation came into force in 2010. There have been caps on those fines—in Scotland, the maximum fine has been £10,000 and, in the rest of the UK, it is £20,000. That is helpful—it has been a good system.

However, by definition, when we investigate and we find breaches, we have to apply proportionate fines. We cannot always apply the maximum fine of £20,000. We have to apply fines that are proportionate to what has happened and, quite honestly, from our experience over a number of years now, we do not believe that it is a suitable deterrent.

In other regulatory fields, for example in the financial world and in the data protection world, the fines that are set to deter people from breaking the rules have gone up. It is a form of financial regulation. The view has been that you need a level of deterrent that says to people, “It is not worth breaking the rules.” The figure of £500,000 is quoted in our submission. We are not saying that it needs to be set that high, but we are definitely saying that the maximum amount needs to be higher than it currently is.

We draw a parallel with the UK Information Commissioner’s Office. The figure of £500,000 is interesting because, after the ICO was created, it got the ability to fine people £50,000 for data protection breaches. With practice, the view became that that was not sufficient and the amount was increased to £500,000. The ICO has further powers now on certain data protection matters. It seems to us that political regulation, which is about maintaining the confidence of the public in the system, is now out of line with other regulation. I fully take your point about small campaigners. The key point is that fines have to be proportionate, but we think that, where appropriate, it should be possible to set a higher level of fine.

Murdo Fraser

That is helpful, but I will probe a little bit further, because I wonder how effective a deterrent a fining system might be as opposed to other possible measures. I can understand a situation where, for example, a political party has a fine levied on it and it would not have a major impact on it. Correct me if I am wrong, but I am assuming that by the time you investigate a breach that has been reported to you, it might be many months after the electoral event or referendum, and there will then inevitably be an appeal process to go through before a fine is levied.

If somebody set up a campaign group to campaign for a yes vote in a referendum, for example, they will have raised money to fight that campaign and they will have probably spent that money by the time you levy your fine of £500,000. The coffers will be empty, the campaign will be finished and the votes will have been counted. What is the point? What impact does a fine have? How does a campaign group that was set up for one event pay your fine months if not years after that event?

Bob Posner

That is a really good point. It is really relevant in a referendum context. In the context of elections, political parties are in it for the longer gain, as it were, and their reputations are at stake. With referendums, campaign groups naturally form, but experience tells us that they will not necessarily remain in existence. It is therefore important both to have a deterrent so that people think that it is not worth breaking the rules and to make sure that the regulator and other law enforcement agencies can move quickly—we use the phrase “in real time” in our submission.

Under the current regime, we have a toolbox of investigatory powers from Parliament and we are grateful for that; it is very helpful. However, it does not always enable us to move quickly. Another thing that we have been saying is that we need to be able to get information more quickly from campaigners and others involved in elections and so forth, so that we can act more quickly.

It is true to say that in the current regime it sometimes takes quite a while to complete our investigations. It is particularly difficult in the context of a referendum, but it is difficult in all electoral contexts. We are commending the view that we should be given more powers to require information more speedily from third parties—to use the phrase.

That is consistent with the approach in other regulatory fields, where things are important enough. For example, health regulators, quite rightly, can move very quickly when necessary. The health sector is not absolutely comparable, but democracy is pretty important, albeit that it is not about life and death. We think that we should have the ability to move more quickly.

We would have to use such powers proportionately. Members should remember that, given that we are a public body, there is always protection for everyone whom we regulate, because we are completely accountable not just to you, the Parliament, but directly to the courts; appeal procedures are built into the systems. If we were to fine a body unreasonably highly or so forth, the body could appeal to the courts and I dare say that we would lose, if we had acted unreasonably. There are protections in the system.

Andy O’Neill might want to add something about the Scottish context.

Andy O’Neill (Electoral Commission)

I just add that the responsibility of someone who is a permitted participant continues. The responsible person still has the duty to have complied with the law. Although the organisation might disappear, the legal responsibility continues.

Murdo Fraser

I understand that point. However—to give a hypothetical example—if someone is setting up an organisation that will have a responsible person who might face a fine, they will just put up what we call, in legal terms, a man of straw to take on the role. If that person is hit with a fine of hundreds of thousands of pounds, they will just say, “I have no assets and no way of paying that.”

I take from what Mr Posner said that it is infinitely preferable to try to address breaches in advance of the date when the votes are cast, because once the votes have been cast and counted, what you do is pretty irrelevant.

Bob Posner

When we talk about being a regulator, it is always important to remember that the large part of our job is about assisting and enabling people to comply with the rules. Enforcement and the investigative work are the tail of the job, as it were. Most of our staff are working all the time on helping campaigners and political parties to comply, that is, by issuing regulatory guidance on how the rules work, working with organisations, running advice lines and being available.

Like regulators in other fields, we proactively go out and audit organisations, outside and in between events, and as events go on. We look for information. We gather our own intelligence about what is going on, and if we see that part of an organisation might be heading towards breaching the rules, we will contact it and encourage it not to do that and to comply. We will call out what is going on, as quickly as possible.

We are very much focused on people not breaching the rules. That is the large part of our job. I hope that that reassures you.

Murdo Fraser

Okay.

Andy O’Neill

We go out and talk to everyone who becomes a permitted participant. We explain their responsibilities and, as Bob Posner said, we monitor what is happening. During the 2014 referendum, there were instances when we talked to people to ensure that they were complying with the law by following our guidance. We said, “We realise that you are going to do this” and talked about what they were actually going to do to ensure that they complied. At the end of the day, under the legislation under which the 2014 referendum was held, we could have published a stop notice to prevent them from taking the action. There are things that we can do in real time.

John Mason

Does there need to be an upper limit on fines? If we had had a referendum on restricting tobacco sales, for example, there would have been a huge incentive for the tobacco companies to oppose restrictions, and a fine of £500,000 would have been nothing to such companies. Could we look at, for example, a percentage of turnover, rather than a limit? That happens in other sectors.

Bob Posner

There are other options, which we see in other regulatory fields, one of which is percentage of turnover.

One is looking for a system that is so structured that one feels reasonably confident that it is not in the best interests of organisations to look to breach the rules; it must be in organisations’ best interests to look to comply. One is also looking for proportionality, so that organisations are not unfairly put off even participating in democracy and campaigning. We have to have a balance there. It all comes back to voters’ interests.

John Mason

In your paper, you raised the issue of transparency around money or the assets that campaigners may have before they register. I experienced that when an organisation that I was with was given money before we registered and did not have to report it. Can you explain the problem with that?

Bob Posner

As we are currently structured, and as is normal, we have regulated periods. In the lead-up to major electoral events or referendums, there is a point when the rules kick in. We have regulated referendum periods where the rules apply. In between or before events, we do not have those rules. Organisations collect money and assets, and that is fine. They may even be campaigning, but if we are distant from an election or referendum, the vast bulk of the rules do not apply. There still has to be regulation of donations, but a lot of rules do not apply to money coming into organisations or being reported.

The first question that that raises is whether the periods to which one decides the rules apply start far enough in advance of the electoral event and the final result in which one is looking to have confidence. One might say that one should have year-round application of nearly all the rules. However, we have regulated periods of 10 or 16 weeks, or of a number of months, for an event. There is a balance regarding how long before an event one wants the rules to apply, so that there can be transparency of regulation for campaigning organisations.

The second question concerns organisations that register to campaign that bring assets with them into the event. They may have gathered their assets and funding before the need to register and campaign. They may have invested in technology. What is the source of their funding? As it stands, the rules say that if an organisation is going to try to influence voters and spend money, it has to register with the commission. All the rules apply in the lead-up to the event, so that we have transparency. There are currently no rules that say that when those organisations begin to campaign, they have to declare their assets. One could just ask them to declare at a very basic level, for example, where they sourced their funding, going back over a certain period.

The point that we have raised is whether it would be good practice, and in the public and the voters’ interest, for campaigning organisations that are going to try to influence voters to declare the assets with which they come into an electoral event. If they did, one could understand from where an organisation might have got what seem to be a lot of funds and be satisfied with that.

John Mason

You mentioned that voters will not have the information. It seems to me that voters will find it quite strange that an organisation that buys a computer on day 1 has to report that, but the organisation that had one two days previously does not.

Another issue is staffing. It is strange to me—and, I think, to the public—that if an organisation spends half of its money on staffing, that portion does not have to be reported, and yet that is a huge part of campaigning. Do we need to look at those rules?

Bob Posner

Yes. The commission is on record as saying that staffing costs of campaigning should come in under the rules and be reported. When one goes back a number of years to what is referred to as “the analogue age”, with people campaigning on the streets, with posters and with a lot of volunteers from political parties, one can see why the rules were structured to say that it was not necessary to see that staff spending.

However, modern campaigning takes place with people sitting at call centre desks and telephoning people, and through digital campaigning, which requires staffing, so it involves considerable expenditure. It seems odd that that is not part of the reporting regime, and that we cannot see what money is being spent there.

John Mason

Generally speaking, you want more detail on what money is being spent on.

Bob Posner

Yes, we think that staffing should come in under the rules. To expand slightly, you will see from our written submission—this applies across the UK and to other events as well—that we have lag periods after electoral events or referendums, before campaigns have to report their spending. Traditionally, the periods are three months for smaller campaigns and six months for larger campaigns. At the stage we are at with technology in the digital age, in which everyone keeps their accounts in information technology systems, do we need such long periods after events before we can begin to do our work and investigate any problems, if there are any, or can reporting periods be shorter? Would that be practical for campaigners? It would have to be. Can spending be reported more quickly, or even at various stages during the event? To do so seems reasonable to us.

We have also made your second point, which is that when we get reporting of information, it is perfectly practical for there to be more detail on the spending so that the public can also see what it has been spent on.

The legislative framework of the Referendums (Scotland) Bill is good and sets out categories for which spending has to be reported, but it does not yet suitably specify the nature of some of the spending in the categories, or digital campaign spending, which is obviously a major activity and spend these days.

11:00  

John Mason

We have had evidence that some people feel that the upper spending limits for permitted participants are too high. Do you have a view on that?

Bob Posner

Spending limits are a matter for Parliament to decide. When asked, the Electoral Commission can make recommendations on what spending limits should be, and, over the years, we have done so.

In practice, for the referendums that have happened, we think that the spending limits have been practical. We have not noticed a major problem.

Andy O’Neill

The spending limits in the bill reflect the spending limits in the Scottish Independence Referendum Act 2013, which were based on the advice that we gave the Scottish Government and the Scottish Parliament in 2012. We were content then. Obviously, over the years, costs change. There is provision in the bill to allow us to recommend changes. At some point in the future, we might recommend changes to spending limits.

Patrick Harvie

The Electoral Commission’s written submission raises the issue of checking the permissibility of donors, which I discussed with the previous panel. We want large and small campaign bodies—not just big, experienced organisations but those that are not well resourced or hugely experienced—to be able easily to check the permissibility of donors. One suggestion has been that a national database of electors should be available. The previous panel raised a number of objections to that but agreed that greater consistency in the formats of locally available electoral registers could be achieved, in order for it to be easier for campaign bodies to check donors against a data version of the register rather than a printed version.

Your submission goes on to discuss the difficulties. Even if we achieve that consistency in Scotland, if donors from outside Scotland but within the rest of the UK are able to donate, how do campaign bodies ensure that they can easily check permissibility?

What can be done to improve the ease with which campaign bodies, in a range of scenarios, can check the permissibility of donors? Would one option be to ensure that only donors who are registered in Scotland can donate?

Andy O’Neill

I will start and my colleagues will chip in accordingly.

The problem that existed in 2014 was that, although a permitted participant could obtain the Scottish register and check that any individual who made a donation was on the register and that, therefore, it was a permissible donation, the campaigner could not get the registers for people from Northern Ireland, Wales or England, who were allowed to donate. That put the campaign bodies in a difficult situation, because they had to trust that the people who gave them money were on the register. On such an occasion, we advised people to use a workaround: to go and see the local ERO’s register or to get the donor to give them a letter of comfort from their local registrar saying that the donor was on the register.

Electoral law is now devolved to the Scottish Parliament and the Senedd in Wales; some remains in the UK. Because there are three policy centres or legislatures, they have to work together. We see that in electoral registration, which we might talk about later. This framework bill is for ever; it is not a one-off event. Therefore, we suggest that the Governments of Scotland, Wales and the UK—and, perhaps, in the future, Northern Ireland, whose Assembly is suspended at the moment—work together so that permitted participants can obtain the registers. In the long term, that would be useful.

Joined-up registers that talk to each other would help people. The National Assembly for Wales is thinking about a national register and it might legislate for that towards the end of the year. Whether that would be a single register or registers for the 20 council areas that talk to one another is a matter for them. We could supply the committee with evidence on that, if it was wanted. We can talk to our Welsh colleagues.

Patrick Harvie

Are people in Wales talking about having a new national body that would be the data controller for a new national register or about co-ordinating at local level?

Andy O’Neill

I think that they are still discussing it. It is probably more about co-ordination than establishing a national body and having a single register.

Patrick Harvie

Is there any reason why we could not achieve co-ordination within Scotland to ensure that the data that is available to campaigners against which they can check the permissibility of donors is in a consistent format? That would remove some of the difficulties.

Andy O’Neill

You should aim to achieve that. Essentially, three major providers of register software are used in Scotland. A national standard whereby they can all talk to one another would be a good thing. The commission would support that.

Bob Posner

The registration system is archaic in many ways, as I think Patrick Harvie was suggesting. We all want it to be modernised and that will require a national approach. We have published a number of feasibility studies. It makes sense for local electoral registration officers to be able to draw on other databases, such as Department for Work and Pensions data, to get information and keep up to date. As you identified, some of them are on different platforms.

On the question of whether, when one looks at the electoral registers in Scotland, it is possible to know whether a donor is permissible, the answer is yes. Of course it is possible, because the registers are available and one can check them to see whether a donor is permissible, but the system is a bit clumsy and it could be more streamlined. Taking that further, one might ask about someone who wants, say, to donate to a referendum in Scotland but who lives elsewhere in the UK; that gets more difficult because the bill does not include the ability to put legal requirements on the rest of the UK, so it requires co-operation. We experienced that issue at the 2014 referendum, so the problem exists. It was okay, but there was no proper structure to deal with it.

The other thing to remember when one talks about permissibility of donors is that it is not so easy to have a Scottish-only ring fence around other types of donors that donate to political campaigning, such as institutions, organisations and companies. In those cases, you would not be dealing with a Scottish electoral register, and a Scottish companies register, or a register for other organisations, does not exist as such. It is difficult to check permissibility and have a system that says, “This company or organisation is Scottish-only so it can donate”, because a company may have a nameplate here but its business may be elsewhere and so forth. That is a much more difficult thing to do in a UK context.

Patrick Harvie

I appreciate that that is probably the case for companies, but surely it would be relatively simple—and defensible, in principle—to say that individual electors should be registered in Scotland if they want to use their money to influence a Scottish referendum.

Bob Posner

That would be a political decision, for politicians, obviously.

Patrick Harvie

Would it be straightforward to achieve that?

Bob Posner

You could ring fence the electoral registers in Scotland and say that. That would be a practical issue.

Patrick Harvie

I was going to move on to the issue of digital imprints. Shall I take that now?

The Convener

Just do it.

Patrick Harvie

The discussion about the extent to which we should regulate the online space has come up, and it is an issue that a lot of countries are grappling with. There are probably no absolute answers about where that will end up. What is your view about the bill’s provisions on digital imprints? Do we need to go further than the bill goes at the moment and think more about online activity rather than simply regarding it as the digital equivalent of a printed leaflet that needs to have an imprint? We are seeing much more disruptive uses of online campaigning. What questions should we be going into in the longer term about how to achieve transparency and accountability in that space?

Bob Posner

First, we very much welcome the fact that the digital imprint provisions are in the bill. In the 2014 referendum there was a basic provision for all imprints including online, which was a first crack at it. It was helpful, but it was a bit clumsy. Digital campaigning has moved on from there, so we welcome the provisions in the bill that say that all campaigning material, including online material, must carry imprint information.

More work is to be done on the provisions. Our fundamental concern is that, as drafted, there is an exception that says that, for online campaigning, there needs to be an imprint unless it is “not reasonably practicable” to have one. We understand why the exception is there—online campaigning is new and, due to its nature, it might not always be practical to have an imprint—but our current practical experience is that the exception is not needed. Our work with the social media companies Twitter, Facebook and Google, and what we have seen in elections in democracies overseas, shows that it is absolutely practical in all forms of digital campaigning for there to be imprint information by clicking on it or other means.

Having the exception is a bad idea, because it creates a hole in the system and means that there is no incentive for the social media companies to include the imprint. That needs to be an absolute rule and we see no practical difficulty with it. It is our strong recommendation, which we made in our written representations and are repeating today, that there is no need for the exception.

More broadly, in June 2018, we published a report on digital campaigning, which we can send to the committee, in which we made a number of recommendations about moving the law on in the voters’ interests. Some of those recommendations relate to things that we have said already today about needing to enable greater transparency.

There are now ad libraries on social media platforms. Facebook, for example, publishes libraries of the adverts that it displays. Publishing ad libraries is helpful and good, but doing so is voluntary, so there is no guarantee that it will be done tomorrow; it is done how Facebook chooses to do it and a different social media platform can do it differently; and it is not necessarily being done in a way that is consistent with UK legislation with regard to a definition of what is and is not campaigning and, therefore, what gets captured in the ad libraries.

One of our recommendations in the report is that we need overview regulations and rules that require social media platforms to provide transparency in a way that is consistent with UK law and requirements. That does not necessarily mean that that needs to be picked up in the bill, but it needs to be picked up in the context of elections and referendums.

One of our recommendations for the bill is that it enables law enforcement agencies, including us as the regulator, to be able to acquire information swiftly from social media platforms to give the public more confidence. The idea is that, if there are concerns that people are being targeted in a certain way or there are rumours that things are not being done legitimately, we can go directly to social media platforms—where we can, as it is not always possible—and require that information. It should be a requirement and not voluntary that they provide the information, because that makes it easier for them. It is interesting to hear the evidence from America, where the social media platforms are saying that, because they are commercial companies, they want the authorities to put rules and regulations in place and require them to do such things. There is further development to be done there.

The third big strand that I will mention today, which we can do something about, is helping voters to raise their awareness about how people are trying to influence them, particularly online. It is a form of digital education. It is important for voters to think about and understand the fact that they are being targeted; that could be obvious or more indirect through campaigns and issues, but it is all campaigning. They must think about who is trying to influence them and the source of information. If there are imprints, they can see who is trying to influence them, but if they cannot see where it comes from, they should be suspicious.

We met the Australian Electoral Commission a few weeks ago and learned that, in the recent Australian federal elections, the commission ran, for the first time ever, a national public awareness campaign telling voters to be aware and think about who was trying to influence them. By all accounts, it was a good campaign that was successful and well received by voters. That is the sort of public awareness work that we would like to help with in the UK context, if it were the wish of the UK and Scottish Parliaments. We would probably work hand in hand with other organisations and have joint campaigns. Data protection is important, for example, so we would work hand in hand with the information commissioner on that.

There is more to be done, including strands of work that we can do on digital awareness to help voters. That is the direction of travel.

11:15  

Andy O’Neill

If we look at the European Parliament elections in recent months, we can see that social media platforms such as Twitter, Facebook and Google are struggling towards getting social media imprints. Our concern is that, if the bill suggests that it may not be “reasonably practicable” to include an imprint, that will give them an out and a way not to develop this sort of stuff.

We have been working with the Scottish Government to give it some international comparators. In Canada, for example, personal opinion is exempt from all this stuff. However, we are still discussing the work around that with the Scottish Government.

Patrick Harvie

I think that we are all struggling to find a set of answers on this, or even to define the questions.

Your written submission draws a distinction between how campaigners should be regulated and how individuals should be treated, and there is a sense that you do not want voters who are simply discussing a referendum to be held to the same standard as campaigners. I think that we would all agree with that in principle, but is there not a danger that it almost implies that we should have the same sense of a binary separation between campaigners and individuals who are discussing a campaign? The online space disrupts that and blurs the distinction between discussion and publishing, given that discussing things online is also publishing.

We have seen that what we used to call astroturfing—corporations producing fake grass-roots material—has been taken to an industrial scale with the use of either fake accounts or very targeted data to manipulate the way in which people experience political debate online. Do we need to look at the space between a campaign body and an individual voter who is discussing a political matter such as a referendum, and think about what we need to regulate there? For example, should the rules be different for individuals who have a social media reach that is beyond a certain size? Should there be a threshold on follower counts or what have you? Should someone who has more than 50,000 followers be regulated and held to a higher standard than an individual who is just discussing things with their friends?

Dame Sue Bruce

That is a very interesting question. I suppose that it would go to the heart of questions about freedom of speech if people who were having conversations about campaign issues in a cafe were not regulated but people having the same conversations online were regulated. That is the medium that is used now. It becomes much more difficult to pin down those conversations and to regulate. It is probably a much wider question than one that we at the Electoral Commission could address, but—

Patrick Harvie

The point is that they are not just conversations. They are also publications. When someone discusses something on social media, they are also publishing.

Dame Sue Bruce

Yes.

Bob Posner

It is a wider question. Traditional newspapers, radio and TV are all regulated. In Patrick Harvie’s example, the question is at what point someone has sufficient reach, perhaps because they are regular and major bloggers and they have a certain number of followers, that they should be regulated. However, that is not our field of regulation. I suggest that that is about the regulation of publishers and the rules that they should follow. That is absolutely a live debate, but I do not think that it is one that you would look for us to control.

I think that you would look for us, quite rightly, to regulate a situation where someone has crossed the threshold and is campaigning. We look at that in the sense of organised offices of campaigners who are spending money on campaigning and so forth, and not just people who are expressing views, whether that is to a large reach or just a few people. They are not campaigning.

Newspapers, for example, include editorial comment and publish views and so forth, but they are not regulated by us, and that is right. On the other hand, if a newspaper starts to produce leaflets in the paper saying, “Vote for so-and-so,” it will fall within our rules and become a campaigner, so there is already crossover.

I can see what Patrick Harvie is saying, but I think that you would look for us to define who is a campaigner within the rules. If someone is spending money and they are organised as a campaigner, they should fall within the rules. That is the distinction that we draw for the purpose of regulating campaigners.

The Convener

I have a couple of follow-up questions for the record.

Mr Posner, you talked about carrying out a publicity campaign that allows the public to understand how best to deal with the information that they get online. Forgive me for what is a very ignorant question, but does the Scottish Parliament have the powers to mandate the Electoral Commission to do that?

Bob Posner

I am going to say yes. Responsibility for public awareness is part of the bill. We can check this after the meeting, but I will say yes, absolutely. We are under a duty to do a public awareness campaign. That has been the case in the past, and it will be the case for future referendums. The question is how we structure the public awareness campaign. One focus is on encouraging people to register, another is on encouraging hard-to-reach groups to register, and another is on getting people to protect their vote against fraud and so on. Perhaps there is a whole new strand—an emerging strand—which is about helping people to think a bit harder about who is trying to influence them. We are seeing that emerge overseas now.

The Convener

Patrick Harvie raised the issue of electoral registration and we have heard from previous witnesses about a study on electoral registration that the Electoral Commission is undertaking. Is there such a study? If so, what is its remit and when do you expect it to come to any conclusions?

Bob Posner

The UK Government is looking at reforming the annual canvass system across the UK, to make it easier for electoral registration officers to get information more speedily by having access to other Government and national databases, in order to see where voters are. One can then begin to look at moving, not necessarily to automatic registration, but to automated registration, whereby the EROs could get information on voters and then confirm that information with voters—for instance, by asking them to confirm that their address is as shown on other records. It is about modernising the system, and we are working with the Government on that. It is a good, positive project.

We have also published feasibility studies about how one can go further with the registration system and get the registers more joined up through increased use of databases. In the UK context, once the registers are on more consistent platforms and it is easier to draw down information straight away from registers anywhere in the country, one can deal with issues of duplication, accuracy and completeness much more effectively. For voters, one can also open up some of the good options that we see overseas, where there are national databases. For example, voters would not necessarily have to go to one polling station in one corner of the country to vote; arguably, they could go to any polling station in any corner of the country. That would surely be a good thing. One could also look at advance voting or other innovations. Such things open the door to modernising the system in the interest of voters. When one thinks of the premise, one would have never have written a system in which there are 380-odd separate registers in the UK that do not talk to one another. We need to move on from that.

The Convener

What are the timescales for that work?

Bob Posner

It requires Governments to introduce legislation and Parliaments to legislate, and those things are not in our gift. Just a few months ago, we published what we call feasibility studies, which set out how such things could be done. At the next stage, we would love to work with Governments and agree a policy timetable to take the work forward.

Alexander Burnett

Where permitted, the panels that we have taken evidence from have been very clear about the need for testing the referendum question and the Electoral Commission’s role in that, including when the question has been asked before. For the record, will you explain your position on that issue?

Dame Sue Bruce

Yes. We strongly believe 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 a 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.

Alexander Burnett

Could you explain briefly how you go about such testing? What is involved in the process?

Andy O’Neill

We have a standard testing procedure. It normally takes up to 12 weeks and the bulk of that time is used for research with the public—we do focus groups and in-depth interviews. For instance, we did that in 2013 across Scotland, including the Western Isles—we went everywhere. We take advice from experts, such as accessibility experts and plain English experts.

We also undertake what is effectively a consultation exercise—there are people in this room from whom we got responses in 2013; we had more than 450 responses the last time that we did a Scotland-only referendum. At the end of the process, we publish a report that we supply to the Scottish Parliament and Scottish ministers.

Alexander Burnett

Unsurprisingly, most of the debate around this part of the bill has concerned the 2014 referendum and the question—or, more particularly, the answer options. What specific study would you undertake in view of the fact that, for the EU referendum, the potential answers were changed, with the answer options in the Scottish referendum being seen as flawed? How would you go about measuring that against, say, the issue of intelligibility, given that the Scottish independence question has been reused so often in polls?

Bob Posner

It is important to say that we do not start with a pre-formed position at all. The fact is that there was a referendum in Scotland in 2014 and, if there were to be a repeat—if I may put it that way—of that referendum, one material consideration would be the fact that there was a question that was in the public’s mind back then and which is familiar to the public because of polling and so on. All of that would be picked up as part of the assessment process. However, we would not start with any position. Obviously, there would be a proposed question for us to assess, but we would not start with a position about whether it was right or wrong; we would simply test it. The whole point is to be evidence-based, and, based on the evidence, we would make a recommendation to the Parliament about what seemed to be the right question.

No one should think that the fact that there was a referendum in 2016 that used “remain” and “leave” means that there is any reason why that formulation would or would not be relevant or appropriate for another referendum. It is our job to do the assessment that takes everything material into account, and we will do that.

The real strength is the public opinion research that Andy O’Neill referred to. That is the absolutely best way to understand questions about intelligibility. We will see—one sometimes gets surprised by issues around wording and so on.

Alex Rowley (Mid Scotland and Fife) (Lab)

That seems to be the argument that the Cabinet Secretary for Government Business and Constitutional Relations is making. He says that we have already had a referendum on the issue, with a question that was tested by the Electoral Commission and found to be fine, and some might say that not a lot has changed in five years. What is the answer to that? The issue is becoming one of the key arguments in relation to the bill. The cabinet secretary has given evidence to another committee to the effect that there is absolutely no need to test the question. What is your response to that?

Andy O’Neill

We would argue that our expertise lies in question assessment. We believe that contexts can change. The context might not have changed, but we will not know that until we do the question testing, whereupon we will give our advice.

One of the things that you get from our expertise is confidence in the question. People—the voters and campaigners—can have confidence in our advice, if we provide a good product. You can choose to accept our advice or not, but we give you our advice. That confidence brings acceptance from the voters and campaigners, which allows you to go off and debate the issues rather than the question. That is why we think that question assessment—irrespective of whether we tested the question five, six or 100 years ago—is important.

Alex Rowley

So you are saying that it is crucial that testing be done. The way that the bill is framed, once a question has been asked, you can keep having referendums every five or 10 years and stick to the same question. However, you are saying that it is crucial to re-test the question.

Dame Sue Bruce

It is important to emphasise that the provisions in the bill should require us to test the question, and there should not be a caveat excluding a question that has already been put. That is important in relation to the point about assurance and the provision of confidence to the electors and those proposing the question that the integrity of the question has been tested and advice has been given. We would emphasise that all questions should be tested.

11:30  

Adam Tomkins

I have three further follow-up questions on that point, on which your written evidence is very strong. It says:

“The Bill should be amended to ensure that:

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.”

Is it your evidence that you can envisage no circumstances in which that element of the referendum process should be bypassed?

Dame Sue Bruce

That is correct, yes.

Adam Tomkins

In some of your answers to questions about testing the question, you talked about “intelligibility”. That is the word that PPERA uses and it also appears in the relevant section of the bill. In other answers, you talked about the “integrity” of the question. Is there a difference between intelligibility and integrity? Is there a narrow or a broad definition that you give to “intelligibility” when you are testing a question? Does it include integrity? I am interested in exactly what is tested, the breadth of meaning that is used and how elastic the idea of intelligibility might be, in your view.

Dame Sue Bruce

We focus on whether the question is demonstrably clear and neutral. The outcome of that will, in turn, have an impact on whether the integrity of the process is intact, so one would lead to the other. Andy O’Neill or Bob Posner might want to add to that.

Bob Posner

That is right. As we all know, nothing could be more core to a referendum than that voters understand the question that is being asked and are not misled by it in any way. As Andy O’Neill said, it must also provide confidence and legitimacy. As Sue Bruce said, that is where the aspect of integrity comes in.

Adam Tomkins

So integrity is part of intelligibility.

Dame Sue Bruce

Yes.

Bob Posner

Yes.

Adam Tomkins

Okay, thank you.

As I understand it—it is a long time since I looked at it, so please correct me if I am wrong—PPERA legislates for a three-way relationship as regards to the roles of the Electoral Commission, the Government and the Parliament. The Government proposes a question; the Electoral Commission is consulted on the question’s intelligibility; and the Parliament then enacts, in primary legislation, what the question should be. However, the Electoral Commission’s recommendations are not binding on either ministers or the Parliament. Is that correct?

Andy O’Neill

Yes.

Adam Tomkins

Is that the relationship that you would like to see set out in the bill? Do you think that it is the right one, as far as the respective roles and responsibilities of the Government, the Electoral Commission and the Parliament are concerned?

Dame Sue Bruce

Yes.

Adam Tomkins

Does it follow from that that you think that the Parliament should legislate, in primary legislation, for any referendum question? If it does not so follow, why is that?

Bob Posner

However one structures the point about the use of primary or secondary legislation, our position is that, at the end of the day, we would have given our expert advice. Ultimately, whether the Parliament approved matters directly through primary legislation or via secondary legislation, it would still own the question.

Adam Tomkins

I can understand why you want to sit on that fence, but I am not going to allow you to—I am sorry. From a parliamentarian’s point of view, the material difference is that individual MSPs can seek to amend primary legislation, whereas, whether as individuals or in large groups, we cannot amend secondary legislation.

The appropriate relationship is that the Electoral Commission makes recommendations, but what if there is no way that MSPs can then act on them? If the commission were to say that a proposed referendum question needed to be changed because it lacked intelligibility or integrity in a certain way, we could change it only if that question were set out in primary legislation and not secondary legislation.

I am sorry, but it seems to me that the force of your earlier answers very strongly suggested that, in your view, referendum questions should be enshrined in primary and not secondary legislation. If I am wrong about that, I need you to explain to me exactly why I am wrong.

Andy O’Neill

I would need to check on this—we might need to write to the committee—but our understanding was that, assuming that a question had not been asked before, we would have to give a view on it. However, that question could still be dealt with by primary or secondary legislation and we would have to provide our advice before consideration of any secondary legislation.

Bob Posner

Secondary legislation might not be amendable, but presumably it would have to be approved.

Adam Tomkins

It might be that we take the view that we want to have the referendum, but we want to have it in accordance with the Electoral Commission’s recommendations and not contrary to them. If the referendum question is set in secondary legislation, that is an impossible position for an MSP to take. That cannot be best practice.

Andy O’Neill

If Parliament decides to do that, we would have to live with it. You make the decisions; we only give you the advice.

The key thing that we want is to be able to give you our advice on any question. We have followed the other debates at which people have talked about the super-affirmative procedure and suchlike. That might be the mechanism that you choose to adopt, and we can give you our advice. The key thing for us is that we want to give you our advice.

Adam Tomkins

I understand that. You want to give us advice, but I presume that you also want us to be able to act on that advice if we choose to. If we proceed with the bill as drafted, we simply will not be able to do that because we will not be able to amend a proposed question to take into account the Electoral Commission’s recommendations. That cannot make you very happy, can it?

Bob Posner

If you end up using a form of secondary legislation that members cannot amend, that will be a form of secondary legislation that Parliament does not have to approve. It is ultimately a matter for Parliament; it is not a matter for us. It is your bill and will be your legislation. As Andy O’Neill says, our role is to give advice and a transparent framework so that people can see that advice.

Adam Tomkins

This is my last go at this, convener; you have been very patient.

The Convener

I have.

Adam Tomkins

The Electoral Commission’s advice is not about whether a referendum should be held but about the intelligibility of a proposed referendum question. That is the advice that you need to feed into the democratic process to enable us to make a decision about whether we should go ahead with the particular wording in a particular referendum at a particular time. If we are able to say only that there should be a referendum or that there should not be a referendum, we will not be able to change the referendum question in the light of your recommendations, and that makes your recommendations nugatory, does it not?

The Convener

That is the same question being put in a different way.

Alex Rowley

Does the Electoral Commission not have to be happy that the public have confidence in the question? To go back to what Adam Tomkins said, would the public have confidence in the question if the Electoral Commission said that there were issues with it but Parliament was not able to do anything about it? Does that bring into question the integrity of the question and of the referendum?

The Convener

That takes us back to what the panel said earlier. Parliament can still decide whether to give its support or not, irrespective of whether primary or secondary legislation is used. If Parliament felt that the question put by the Electoral Commission had been altered to an extent that it was not happy with, Parliament could vote it down.

Alex Rowley

I suppose where I am trying to go with this is to say that, at the outset, we should try to find the best way to ensure that the public can have confidence in—

Adam Tomkins

I would like to hear the answer to my question.

The Convener

I agree. We are having a debate here. The witnesses have told us a couple of times that it is for parliamentarians to decide and I am trying to give the witnesses the space to restate that so that they do not feel under pressure. On you go, Mr Posner.

Bob Posner

I think that you are right, convener. We are reluctant to step into a space that is for members, for Parliament and for political viewpoints. We are obviously reluctant to step into that space.

However, it is fair to say that, if we have given advice, we would hope that it was followed. Why would we not hope that? We would have given that advice and, if it was not followed, we would be disappointed but we would respect the democratic outcome and voters would have to make what they could of it. That is the right democratic position.

What is really important to the Electoral Commission as an organisation with responsibilities around integrity—I agree with that—is that we say, “This is what we think the question should be. Here’s our advice.” There could be a good reason for Parliament or the Government to say that we have got it wrong—it might be a very persuasive reason. However, we would want to give our advice.

The Convener

Gordon MacDonald has a question.

Gordon MacDonald

I have a few questions that are mainly to help with my understanding of the testing regime.

You highlighted the testing methods, but looking back to the 2014 independence referendum, were you satisfied that the question that was asked at that time was easy to understand, clear, simple, concise and neutral?

Dame Sue Bruce

Yes.

Andy O’Neill

Yes.

Gordon MacDonald

Good. I understand from the Ipsos MORI report on the 2014 testing carried out on behalf of the Electoral Commission that the

“sample size was relatively large for this type of research”.

Why was that?

Andy O’Neill

Sorry, but could you repeat that question?

Gordon MacDonald

The report on the testing of the question in the 2014 referendum says:

“The sample size was relatively large for this type of research”.

Why did you require a larger research panel than is normal for testing questions?

Andy O’Neill

From memory, I would say that that was because we wanted to give you a very good answer and good advice. We went all over Scotland—we did focus groups in Stornoway and elsewhere. It is a very important question and that is why we did what we did.

Gordon MacDonald

Would I be right to say that the phrasing of the question used in the 2014 referendum was suggested and recommended by the Electoral Commission?

Andy O’Neill

Yes. The question that we were asked to test was: “Do you agree that Scotland should be an independent country? Yes or No”. After 12 weeks, we recommended that the question should be:

“Should Scotland be an independent country?”

Gordon MacDonald

How robust was the testing of that question to ensure that voters had a clear choice of the options available to them?

Bob Posner

I can perhaps assist here. That was in 2014, and as I said earlier, one should not draw any conclusions from that about what we should be saying now. It is not right for anyone—politician, academic or anyone else—to take the view that they know the answer and that they know that the same question is clear now in 2019. No one can say, “I know that voters will understand it and it will be the right question for any given referendum”—after all, this is a framework bill for any referendum. It is far wiser and more prudent to say that referendum questions are so core to the whole function of a referendum that we should ensure that they are always assessed.

We will always look at the best way in which to assess the question, at the time, taking into account the material considerations. We publish all that information for everyone to see. We have not heard any argument why one would not want to do that when we are making legislation.

Gordon MacDonald

I am just trying to understand. We have a question that was robustly tested, suggested by the Electoral Commission and was widely understood. The question that was asked in 2014 was recommended by the Electoral Commission and has been asked in 231 opinion polls since 2011, 99 of which took place between 2014 and 2019, with an average poll size of about 1,000 people—a normal sample size. That means that a quarter of a million people have been asked the question on top of the 3.6 million who voted in the referendum in 2014—the highest turnout of any referendum that has ever taken place in the UK. Is there a potential danger that by changing the question, the Electoral Commission will introduce a level of confusion in the mind of the electorate?

Dame Sue Bruce

We are not proposing to change the question but simply to test whatever question is proposed to be put. It could be the same question and then that question would be tested—it does not necessarily imply that it would be changed.

Andy O’Neill

The important thing about testing is to give the electorate confidence in the question, whatever the result is. We do question testing case by case—no precedent is set. We go through the process, collect the evidence, consider it and give you our advice. We have no preconceived ideas on that. Other people may state that we have such ideas, but we do not.

That is important because, for example, the independence question has itself become part of the debate. We want to test that, so that the electorate can have confidence in whatever question they are asked—if there is another referendum—and accept it.

11:45  

Gordon MacDonald

I accept that. Most commentators said that the referendum in 2014 was the gold standard of referenda and that it should be a template for referenda that take place elsewhere in the UK. I am trying to understand what the grounds would be for changing the question, if that was what you proposed after testing. What would be the triggers for suggesting a change to the question?

Dame Sue Bruce

That would follow the evidence.

Andy O’Neill

It would depend on the evidence.

Patrick Harvie

To follow up on that, is it fair to say that, in testing a question, you do not look only at the objective words; you look at how the question is understood by the public, and that involves cultural questions about the way in which the words convey meaning to the public so, if those cultural factors had changed, that would be a reason to change the question? Although in the run-up to the 2014 referendum it might have been possible to make a case for saying that the question should involve words such as “leave” or “remain”, those words were changed profoundly in the run-up to and aftermath of the 2016 campaign, so it would not be appropriate to apply them to a different question from the one that was addressed in 2016, which was about EU membership.

Dame Sue Bruce

That is the kind of material that would be tested were the question to be tested in that context. Of course, there would be electors who did not vote in 2014 and are new to elections and referenda. The idea would be to test the question to ensure that it was understandable and was not nuanced on either side and that electors felt confident that they could participate in the referendum and cast their vote appropriately in light of the question.

Bob Posner

In 2014, the Scottish Government proposed a question, which I presume it thought was the right and fair one, but we recommended a change, which was accepted. Gordon MacDonald is absolutely right that that referendum is looked on as the gold standard. I assume that, going forward, you want any other referendum also to be a gold standard. Why would you introduce risk into the system? With an independence referendum, we might end up with exactly the same question, but you would want it to be tested and you would want people to have confidence in it. That is what we are suggesting.

The Convener

Angela Constance has a follow-up question on the same issue.

Angela Constance (Almond Valley) (SNP)

It is very quick. Would the commission always need 12 weeks for the testing of any question in any referendum?

Andy O’Neill

The short answer is yes. One reason for that is that the bulk of our testing is of public opinion, and that takes time—it takes about eight weeks for the way that we do it. We also consult lots of other people. We need time to do it. We could shave off days or a couple of weeks if we were told beforehand that we were going to do it and we had someone contracted to undertake work on our behalf, but it takes time to give you quality advice.

Angela Constance

I suppose that you have described a process that could be done differently depending on resources.

Andy O’Neill

We do it in a particular way. As others have said, it is the gold standard. Personally, I would not want to move away from that standard.

The Convener

Tom Arthur also has a question. I knew that this area would take a long time, which is why I dealt with all the other questions first.

Tom Arthur

I promise that it is a very brief question, just to assist my understanding.

We have heard that a question would be proposed and the commission would assess it and reserve the right to suggest another question, based on where the commission is led by the work that it undertakes. How do you test the intelligibility of any change of question among politicians so that, whatever instruction is issued by the electorate in the referendum, that is clearly understood by the Government and the Parliament?

Bob Posner

The process involves continually talking to campaign groups, politicians and other interested groups and individuals—that is partly why it takes a while. If, along the way, the information shows that the question needs to be amended in a certain way, we test the amendment as well as part of the process. We go back through the loop again with everyone who has an interest to ensure that we have a view on the question. We endeavour to achieve the understanding that you are concerned about.

Tom Arthur

So there would be an open dialogue, and if a certain question was suggested but it was the opinion of politicians and experts that that question might be ambiguous or vague in the instruction that it gave, that would form part of the on-going process of consideration of what the final wording would be.

Bob Posner

Yes.

Andy O’Neill

Apart from the public opinion research, we talk to lots of different people all the time. We run a mini consultation exercise and talk to plain English experts. We do a lot of other things, which then come into the pot before we give our final advice.

Alex Rowley

I have a brief follow-up question. Is it not ironic that we got the answer from the European Union referendum but then Parliament and everybody else seemed to be confused about what it was that people voted for and proceeded to argue about that? That is the worry with referendums, is it not? The outcome of the 2016 referendum is not accepted by politicians and they are all running around saying, “That’s not what people voted for.”

Bob Posner

A distinction can be drawn between an advisory referendum and a binding referendum. With the referendum on the alternative vote system for the Westminster Parliament, all the legislation was in place, so we were able to say clearly to voters, “Whichever way you vote, this is what will happen.” That contrasts with the position on advisory referendums. Sometimes, an advisory referendum might be dealing with clear facts—it might be about abortion, for example—but, with other issues, that might not be the case, as you described.

With the 2014 referendum, we asked the Scottish and UK Governments to issue a joint statement—which they did—about the consequences of the outcome, whichever way the vote went. I think that that was helpful for voters, but it went only so far.

Andy O’Neill

That was one of the interesting by-products of the process for assessing the intelligibility of the question in 2014. People understood the question and what it meant to leave the UK or to break with Westminster—Patrick Harvie alluded to the fact that lots of different language was used—but the electorate told us that they did not know what would happen next. Therefore, we spent a considerable period of time working with the UK Government and the Scottish Government to produce information on what would happen next in the event of a yes vote and in the event of a no vote, which we included in the public awareness leaflet for households that we circulated to 2.5 million electors in Scotland. We included a page for the designated leads for the yes and the no side to give more information, because we thought that that was extremely important.

The Convener

I think that we have got through that area. Angela, do you still want to ask about the corporate body issue?

Angela Constance

Yes. I have two specific questions about the Electoral Commission as a body.

As parliamentarians, we are elected, whereas the commission’s commissioners are not elected. I looked at the commission’s website, where I discovered that it has 10 commissioners. There is a 50:50 gender balance—that gets a big tick. There are people who are tasked with looking after Scotland, Wales and Northern Ireland. Some commissioners are former civil servants who have operated at the highest levels of the UK Government, while others are representatives of political parties. There are representatives of the Conservative Party and the Labour Party, as well as a minorities representative, who is someone with a background in the Democratic Unionist Party.

How do you ensure your impartiality? That is what I am interested in.

Dame Sue Bruce

That is a fair question.

The appointment process for the commissioners for the regions is routed through the Speaker’s Committee on the Electoral Commission, which is a committee in the UK Parliament. We overtly state our neutrality. At the commission board, we are required to speak openly about any interests or conflicts of interests, and that is refreshed on a regular basis.

The commissioners who are appointed as political representatives to the board look at the issues in the round. They bring their point of view as experienced politicians to the table, but they try to always act neutrally as far as their role as commissioners is concerned. Bob Posner may want to add to that as chief executive.

Bob Posner

Yes—there are layers of protection to make sure that there is not partiality. I am the accounting officer of the commission, which is a statutory role. I have to account to Parliament that any public money that the commission spends is spent lawfully. If I saw something that was perhaps not proper on the commission board, I would have to step in as accounting officer and deal with that and, if necessary, make a public statement and report to Parliament, so that is another layer of protection.

When there have been accusations that the commission is biased—it has happened only very occasionally, but it has happened—we have always looked to deal with those accusations in as independent a way as possible. In the case of the EU membership referendum, there were accusations of bias against the commissioners. We appointed an entirely independent person to look into those accusations. The commission stepped back entirely—it was an independent report. The person was satisfied and reported to the UK Parliament that there was no bias in that instance. We do everything that we can to ensure our impartiality.

The commission is under a strict code of conduct, which is public. We have to sign up to it and we have to live up to the principles of public life and other principles. All the staff are subject to a strict code of conduct; there are restrictions on staff in relation to their backgrounds. There are protections against them coming directly from political parties, they cannot work for them for a number of years and so forth.

Our regulatory work is particularly sensitive politically, so we have strong internal standards about how we handle our regulatory work. If we investigate something, someone else also assesses it and it is then looked at by a third person. In the past couple of years, appeals against some of our regulatory decisions have been taken to the courts; those have included accusations of bias, but the courts have not upheld those appeals in any instance. Bias is always a possibility, though, so we do our best to protect against it.

Angela Constance

Okay. Thank you very much for that. The bill says that

“any expenditure incurred by the Commission”

must be met by the Scottish Parliamentary Corporate Body. That is out of step with how the SPCB funds other independent organisations, where a budget is agreed and the SPCB is not under any obligation to fund expenditure above that budget. Do you think that it is right that the Electoral Commission should be treated differently from other independent bodies? If so, can you explain why?

Andy O’Neill

I have seen the report that you allude to. We have no problems with what is being suggested as an alteration. Interestingly, another bill that is before the Scottish Parliament, the Scottish Elections (Reform) Bill, says that we need to be accountable to the Scottish Parliament, which we are keen to do. I do not think that the provisions in that bill reflect the provisions in the referendums bill. However, we have no problems with the suggestion.

The Convener

I think that we have exhausted all the questions. I am grateful to the people from the Electoral Commission who have appeared before us to help us with this evidence session on the referendums bill.

Meeting closed at 11:58.  

The Convener (Bruce Crawford)

Good morning, and welcome to the 20th meeting in 2019 of the Finance and Constitution Committee. I make the usual reminder about mobile phones.

We have a single item of business on the agenda today, which is to take evidence from the Cabinet Secretary for Government Business and Constitutional Relations, Michael Russell, on the Referendums (Scotland) Bill at stage 1. The cabinet secretary is supported by Scottish Government officials Penny Curtis, who is the head of the elections and freedom of information division, and Graham Fisher, who is a solicitor. I welcome our witnesses and invite the cabinet secretary to make a short statement before we move to questions from members.

The Cabinet Secretary for Government Business and Constitutional Relations (Michael Russell)

Thank you, convener, and thank you to committee members for inviting me to be here. I am glad to have the chance to discuss the Referendums (Scotland) Bill. The purpose of the bill is to put in place a standing framework of referendum rules that could apply to different referendums that could be held across Scotland. The rules set a high standard and will ensure that debate on a future referendum can concentrate on the merits or otherwise of the referendum itself.

From the responses to the committee’s call for evidence, it is obvious that, although they may not agree with all the individual details, a wide range of bodies, administrators, legal commentators and academics support the general principles of the bill. I have listened carefully to the evidence that has been presented to the committee during evidence sessions, and to the views of the Delegated Powers and Law Reform Committee, both for and against provisions in the bill. Our objective, as with all our work to update electoral law, is to ensure that the bill reflects best practice and puts the interests of the voter first.

I am keen to hear from members today to see where I can work with the committee to address any points that it wishes to consider. Collectively, we can ensure that the bill puts Scotland at the forefront when it comes to conducting referendums. My overarching aim is to ensure that the bill works well for voters and administrators.

As I indicated, I am sure that the committee will have noticed that, when I gave evidence to the Delegated Powers and Law Reform Committee, I stressed that I am open to alternative approaches to all aspects of the bill, where they would more effectively facilitate the aims of the bill. I want to come up with the best solutions that are available to make the bill as widely accepted as it can be. I am happy either to answer any questions and respond to suggestions here, or to take them into consideration as the bill moves forward.

The Convener

Thank you, cabinet secretary. The committee has received substantial evidence on the bill. Although there is strong support for the policy objective of having framework legislation for all future referendums in Scotland, substantial issues have been raised about some parts of the bill, in particular the regulatory powers of ministers and the role of the Electoral Commission in question testing.

Colleagues from around the committee will want to pursue those issues with you in more detail. First, however, for the purposes of the record, what is your general response to the evidence that we have received on those areas?

Michael Russell

My approach to bills has been the same for all the time that I have been a minister: to bring a bill to the Parliament and discuss it and see how it can be improved in the light of both evidence that we get from stakeholders and experts and the views of individual members. I have taken that approach to every bill with which I have been engaged and, in one way or another—as ministerial colleagues, members of a committee or Opposition politicians—members around the table have seen that in action.

I stress at the very beginning that I am listening to the concerns that are being brought forward. If people read—as I am sure that many committee members have done—my evidence to the DPLR Committee, they will see that I brought forward ideas about things that I thought could change. I introduced the concept of whether there should be a differentiation between types of referendum in relation to how scrutiny should take place, and I am pleased that the committee has taken up that concept and developed it, as there is huge potential there.

I am open to discussion and I am listening. Although there are political issues about which we will disagree, there are other, technical issues about which we can agree, and I look forward to improving the bill as it goes through stage 2 and stage 3—that is what I want to do.

The Convener

Will you tell us a wee bit more about the issue of differentiation?

Michael Russell

As is becoming clear, there is not just one type of referendum. We begin to see that when we look at how referenda exist in other parts of the world. In New Zealand, for example, the Government can initiate referenda on certain matters by an order in council, which is essentially an executive action. Those are postal referenda. One referendum that was held in that way was to do with the sale of state assets, which was—in a sense—a comparatively minor referendum. I am not saying that that will happen in Scotland, but Mr Tomkins has already suggested that referenda on financial issues should be excluded by the Government or by legislation. That is also worth discussing.

However, moral issues such as abortion or assisted dying might be subject to a referendum in Scotland. In those circumstances, it might be appropriate to have primary legislation as the adjunct to the bill. Issues arise from section 30 orders; again, that might create a category that would fit in in that way.

We should not see all referenda as the same; therefore, the scrutiny of all referenda should not be the same. We could have a super-affirmative process for some and primary legislation for others.

At the outset, I stress the approach that we are taking, which has sometimes been misunderstood by those who have given evidence. It is not an attempt simply to reproduce the United Kingdom Political Parties, Elections and Referendums Act 2000. It is an attempt to do something slightly different: to create in the bill the framework to hold any referendum, so that the specific referendum can be plugged into it when that is required.

For example, there were 60 pages of detail in the European Union Referendum Act 2015 about how the referendum should be held. If we take this approach, that would be unnecessary, because that detail would be in the framework bill. If Parliament decides to hold a referendum, any piece of primary legislation on that subject would be much smaller. It would deal with the question of timing and a few other details. That is the reverse of what has been done south of the border.

If you understand that, it becomes clear that we are trying not to evade scrutiny but to have the appropriate level of scrutiny for each type of referendum. I am open to what that should be. In a referendum on a moral issue or a section 30 referendum, the Parliament might wish to amend; in another referendum, it might not wish to do that but it would want to scrutinise. Of course, secondary legislation would allow that to happen.

Adam Tomkins (Glasgow) (Con)

I welcome the tone of the cabinet secretary’s opening remarks. I share your strong sense that we should ensure that Scottish legislation, with regard to referendums, reflects national and international best practice, which always puts the interests of voters first and foremost.

I will ask detailed questions about the regulation-making powers that are contained in the bill as presented to the Parliament. Before that, and given what you have been exploring with the convener, I have another question. The legislation was first discussed in the Parliament in a statement from the First Minister about Scottish independence. Since then, you and she have been keen to assure us that the bill is not about a second Scottish independence referendum but that it is broader than that. Is that correct?

Michael Russell

Yes. 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. However, it is also available to create other referenda. As you know, it is a reverse of the process that took place in 2013-14.

Adam Tomkins

Apart from independence, what are the other issues that the Government—of which you are a member—proposes to put to the people of Scotland in a referendum?

Michael Russell

We have made no such proposal, but once the legislation is on the statute book it would be available in those circumstances. That is not dissimilar to what happened with the UK legislation in 2000.

Adam Tomkins

When the UK legislation was introduced in 2000, the Government had no specific referendum in mind that, within the foreseeable future, it intended to manufacture. That is not the same as the current position.

Michael Russell

Respectfully, I disagree. We are going to have a respectful conversation on this, and the tone is important. The circumstances in the UK created the framework for a referendum, albeit in a different way. As I explained, we are doing something different. Similarly, this bill creates those opportunities. It also works within the context of the Scottish Government’s request for a section 30 order. The Scottish Government believes that it has a mandate for a change. It believes that there should be a referendum and that this will be the means by which it could happen. However, it is not the only thing that the bill could be used for.

Adam Tomkins

Nonetheless, the context in which we are examining the bill is one in which the Scottish Government is committed to only one future referendum, which is a referendum about independence.

Michael Russell

I would not use the word “only”; the Government is committed to a future referendum, but it is perfectly possible that there could be others. Members of the committee could propose or suggest others, and the bill would be available to them.

Adam Tomkins

As could you—so why don’t you? What are the other issues that you, as Cabinet Secretary for Government Business and Constitutional Relations, think should be put to the people of Scotland in the form of a referendum under the bill?

Michael Russell

I can speak only for my portfolio. As I am the cabinet secretary for constitutional relations, I am dealing with a constitutional issue. Other colleagues would no doubt have views on the matter; none of those issues is presently Government policy, because colleagues have not brought them forward. I have, however, indicated that an area of moral concern might be part of such consideration. I do not think that I am doing anything other than providing the circumstances in which referenda can take place, without hiding the fact that I would like to see a referendum on independence.

Adam Tomkins

That is understood—thank you.

I turn to the detail of two or three of the ministerial order-making powers that are contained in the bill. Section 1(1) provides that

“The Scottish Ministers may by regulations provide for a referendum to be held throughout Scotland on one or more questions.”

You said that you have carefully studied the evidence that this committee and the DPLR Committee have received. Do you accept that the force of that evidence is that section 1(1) cannot stand?

Michael Russell

I accept that there is strong opinion that there should be a different type of scrutiny, or that there could be a different type of legislation. It may well be that, in certain circumstances, there should be primary legislation. I am open to that discussion.

Adam Tomkins

Do you think that a future independence referendum should be the subject of bespoke primary legislation, or do you think that such a referendum—given that that is the only example of a referendum that you are prepared to talk about—should be triggerable under a provision such as section 1(1)?

Michael Russell

It is quite clear—from the evidence that I gave to the DPLR Committee, which I am giving again here—that there is an argument to be made for having primary legislation for issues that are subject to a section 30 order. I am not going to resist that. I hope that, in those circumstances, we can craft a series of amendments that would allow that to happen.

Adam Tomkins

The effect of those amendments would be to ensure that any future referendum in Scotland that required a section 30 order, which would include any future independence referendum, would require primary legislation, rather than a secondary instrument.

Michael Russell

I have said that I am absolutely open to that as an amendment to the bill. I found the discussion that I had with the DPLR Committee very helpful in that regard.

Adam Tomkins

That is helpful—thank you.

Let us move on to ministers’ powers to specify the referendum period, on which we have received equally strong representations from our witnesses. What is your reaction to that?

Michael Russell

A referendum period is as much a technical issue as any other. A referendum period is intended to allow those who are organising the referendum to do so in an efficient and effective manner. I can see no objection to that being specified by secondary legislation. However, if the mood of the Parliament is that it should not be, I am open to having a discussion on that.

I go back to what I said at the beginning: I treat the process of legislation as starting with a proposal, discussing that proposal and endeavouring to improve that proposal.

In the evidence that you have heard, some people have argued that the period has varied between a minimum of four weeks and 10 weeks. I am absolutely open to that being discussed and settled. That seems to represent a variable period if we accept that there are different types of referenda, so a variable period by order would seem to be entirely reasonable. However, if the Parliament wants to specify a period in primary legislation, as it would do in a referendum that required primary legislation, for instance, so be it.

Adam Tomkins

That is also helpful—thank you.

You have been very patient, convener. Depending on the answer, this will be my final question.

The Convener

Put your final question, and we will see how it goes.

Adam Tomkins

A third issue that is reflected in the evidence that we have received is the very broad power in section 37 that enables ministers to amend the eventual act by regulation. Are there circumstances in which you can see the force of the argument that that power should be curtailed?

Michael Russell

We need to discuss what we are endeavouring to do. I am not saying that that power should not be amended in the bill. However, what are we attempting to do? What we are attempting to do has been broadly welcomed, and that is to have dynamic legislation and to ensure that electoral legislation is not static. We can see how PPERA, which was enacted in 2000, has atrophied and how it has had to be subject to occasional change. I am very much open to finding a lock on that mechanism that reassures people that the bill is not about amending by the back door, but I want to meet the objective of developing dynamic legislation.

10:15  

Electoral legislation tends to be shoved to one side and dealt with only occasionally. However, things are changing quite a lot in this area, and we might talk later today about digital imprints. Where we sit now, it is difficult to see how that legislation might work but that might not be true in two years’ time. If it is not true in two years, it would be helpful if we were able to amend the act by upgrading it and making it better.

I am happy to discuss how we could make that more acceptable to the Parliament, but there is still an argument for making sure that we can use the section 37 powers in a way that means we can have dynamic electoral legislation.

Adam Tomkins

We will have to come back to that issue at stage 2.

The Convener

It is interesting that—if I have got this right—the Delegated Powers and Law Reform Committee also looked at this area. I want to make sure that we have everything on the record. If I am cutting across a question that Tom Arthur was going to ask, please forgive me.

The Delegated Powers and Law Reform Committee said:

“The Committee focused its scrutiny on the delegated powers contained within the first three sections of the Bill. It was content with the delegated powers provisions in sections 11, 34, 37, and 38 and in the Schedule.”

I think that we were discussing section 37.

Michael Russell

Yes, it was section 37.

The Convener

What is your reaction to that?

Michael Russell

We are on the same page on this. I think that we need dynamic legislation and that was clearly accepted by the Delegated Powers and Law Reform Committee. However, it is not just about the Delegated Powers and Law Reform Committee; this committee has heard evidence with some concerns. Mr Tomkins brought up those concerns and I am willing to discuss them, as long as we can meet the objective of having dynamic legislation.

Tom Arthur (Renfrewshire South) (SNP)

I have a brief supplementary question on possible future referenda. I refer to what you said about the Delegated Powers and Law Reform Committee and what is in that committee’s report. Earlier, you mentioned areas of moral significance, such as assisted dying. That is likely to be explored again in session 6, but it is likely to arise from a member’s bill. Would such a bill be able to plug into the framework of this bill?

Michael Russell

I stand to be corrected by the clerks, who know the regulations better than I do. I think that a member’s bill cannot have a financial resolution. If a member’s bill required expenditure on a referendum, I wonder whether that would be possible. That is off the top of my head. I see that the clerks are conferring; they might have a better answer.

There is no reason why the framework of the bill should not be used for that sort of thing, but there are difficulties with a member’s bill.

Tom Arthur

Such proposals have previously failed to command the support of Parliament, but there might be a way round that if the issue were to be put to the people. Even if it was possible for a member’s bill to make provision for a referendum, it would be beyond its scope and capacity to have a piece of legislation that detailed.

Michael Russell

It is unlikely, but I would not say that it would be impossible. A question has been raised with me about local referenda; again, as I understand it, there is already legislation that allows local referenda, but it might be unduly onerous to expect local referenda to observe every detail of the framework. The bill does not impede or permit local referenda; it sits to one side of that argument.

Tom Arthur

Thank you.

The Convener

We will move on to further areas of questioning.

Neil Bibby (West Scotland) (Lab)

As drafted, the bill precludes the Electoral Commission from fully testing a question when the issue has already been put to a referendum. Am I correct in saying that the Scottish Government’s justification for demanding a second independence referendum is that there has been a material change in circumstances following the result of the referendum on the United Kingdom leaving the European Union?

Michael Russell

I can see where your question is going, Mr Bibby. The request for a referendum in Scotland is based on the manifesto, which sought a mandate based on whether there was a material change, and it specified what that material change was. I do not think that that justifies a change in the question, but I see where you are coming from.

Neil Bibby

Do you believe that there has been a material change in circumstances? As you know, for the EU referendum in 2016, the Electoral Commission tested a question that was similar to the one that was used in 2014 but ended up recommending a different form of words. Given that your justification for having a second independence referendum is a material change in circumstances, why are you so reluctant to allow the Electoral Commission to fully test appropriate questions that reflect the experience that has been gained since 2014, particularly given that it adopted a different form of question in 2016?

Michael Russell

That is a fair question. I want to be very clear about my position: I am not against testing questions. In fact, I believe in testing questions, and the bill indicates that questions should be tested. I am against retesting in circumstances that do not require that.

Let me go back to what the Electoral Commission said in 2012 and 2013, when it tested the question that was finally used, because it is important that we clear away the myths and look at the facts. The question that the Scottish Government proposed in 2012 was:

“Do you agree that Scotland should be an independent country?”

The Electoral Commission’s recommendation was:

“Should Scotland be an independent country?”

In its reasoning, it says at paragraph 5.26:

“In all aspects of our question testing, one version we tested was clearly preferred by most participants. We recommend this version because it is:

• a more neutral formulation than ‘Do you agree ..?’

• it does not ask for a judgement of someone else’s view or decision

• direct

• short and simple”.

That question was used in 2014, and it has been used in opinion polls something like 56 times since then. I think that, in the past 14 months, there have been only 11 instances in which that question was not used. In our view, the question is in current use. The question met the criteria—indeed, we changed our question in order to meet those criteria. It has been tested.

Any allegation that I do not want testing is simply not true. I am entirely in favour of testing. Any new question that arises in a new referendum should, of course, be tested. The question that was used in 2014 is a question that is in current use. In such circumstances, it has been tested and therefore fits with the bill. Section 3(7) says:

“This section does not apply in relation to a question or statement if the Electoral Commission have—

(a) previously published a report setting out their views as to the intelligibility of the question or statement, or

(b) recommended the wording of the question or statement.”

That fits precisely with what we have been talking about. The position, as set out in the bill, is the one that I have taken and, at present, it is the position that I want to hold.

Neil Bibby

I acknowledge the evidence that you have cited from 2013. However, over the past few weeks, witnesses have been overwhelmingly clear that the Electoral Commission should be involved in testing the question. Dr James said:

“I think that the Electoral Commission should be fully involved. I cannot see any advantage in limiting its role”.—[Official Report, Finance and Constitution Committee, 11 September 2019; c 30.]

Professor Fisher said:

“I think that excluding the Electoral Commission ... would be inadvisable”.—[Official Report, Finance and Constitution Committee, 4 September 2019; c 19.]

Those concerns were shared by Michael Clancy and Jess Sargeant. Dr Mycock said:

“It is appropriate for every referendum—if it is repeating an issue or if the material circumstances have changed—to go through that process”,

in other words, testing the question,

“even if it is simply a confirmatory process, so that you get buy-in from as many citizens as possible on the legitimacy of the particular referendum.”—[Official Report, Finance and Constitution Committee, 11 September 2019; c 30.]

Are you prepared to ignore the expert advice that we have received by continuing to sideline the Electoral Commission, through the way in which the bill is drafted? If so, why are you not concerned about getting buy-in from as many citizens as possible?

Michael Russell

I am entirely in favour of testing the question, as those witnesses are. The question has been tested and is in current use, which is an important factor that needs to be factored into any evidence that is received. I repeat: the question has been used more than 50 times. It is the question that is understood, so it should be carefully considered rather than simply cast aside.

I am in favour of testing questions—there is no doubt about that. However, in this case, the question has been tested, and the Electoral Commission recommended the question that was used and which continues to be used. That strikes me as extremely important.

Alexander Burnett (Aberdeenshire West) (Con)

You say that the question has already been tested, but that was some time ago. Are you saying that bodies such as the Electoral Commission do not learn from experience or over time?

Michael Russell

I am not saying that. I am saying that, when we have a question that is not only tested but in current use, that question is understood. It has been used again and again, so I want to know why people think that it should not be used again and again.

Some people argue that there should be a different formulation. Some people argue that there should be further restrictions on the franchise—they desire that there should be, say, a two-thirds majority for a change to be made. Those are legitimate positions, but they do not seem to be fair and democratic positions.

I am in favour of doing exactly what was done and remaining true to what was passed by the Electoral Commission, which is understood and is still in current usage.

Alexander Burnett

I agree that there may be differing views on the franchise and all the rest of it, but does it not go to the heart of the credibility of the bill that you are prepared to say that your view on the matter overrules the credibility of involving the Electoral Commission?

Michael Russell

No. I have quoted what the Electoral Commission said and I am in favour of testing. I think that that is an entirely consistent and principled position. The question has been tested. My view would apply to any question in such circumstances. I am in favour of testing, but 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.

Alexander Burnett

I agree that that may be a point, but is the fact that you are saying that the question has been tested not less credible than the Electoral Commission saying the same thing?

Michael Russell

Clearly, if there is a difference of opinion, there is a difference of opinion, but the question has been tested by the Electoral Commission, and I quoted its report on the matter.

Gordon MacDonald (Edinburgh Pentlands) (SNP)

When I asked the Electoral Commission some questions on the subject last week, it highlighted that the question was its question and that it was easy to understand, clear, simple and neutral. Over the past eight years, 231 opinion polls have carried that question, and 3.6 million people voted on it. Is there a danger that we would create confusion in the minds of the electorate if, at this late stage, we changed the wording of any referendum question?

Michael Russell

I think that that would be a danger if a question was in current usage, and the question that we are discussing is in current usage. There have been suggestions that we should shift to, for example, leave or remain. Anybody who makes that suggestion has clearly not thought it through very well, given the currency of leave and remain.

The question was tested. As the Electoral Commission indicated, it is

“direct ... short and simple”

and

“it does not ask for a judgment”

and it is

“a more neutral formulation than”

the one that the Scottish Government put forward. I think that that is pretty convincing.

Gordon MacDonald

Are you satisfied that the Electoral Commission’s testing was robust and that it stood up to scrutiny?

Michael Russell

It is a bit late for me to be concerned about that, given that it was in 2012—

Gordon MacDonald

I accept that.

Michael Russell

I would have to say yes.

Alex Rowley (Mid Scotland and Fife) (Lab)

Good morning, cabinet secretary. You have said that the question was tested and it was fine and that, if we have another referendum, the same question should apply. Should there be a time period that must elapse before the Government can call another referendum? Even if we forget the independence question, which is the one that you say the bill has been brought forward for, we could end up having referendums every time somebody is not happy, because they might want another one and another one until they get the right answer, and they might keep going with the same question.

Michael Russell

Of course that should be a consideration. Are there circumstances in which referenda should be repeated and are there circumstances in which they should not be repeated? This is not just a conversation that we are having in Scotland; it is one that exists about the Brexit referendum. In these circumstances, we have to look at the political circumstances and where things are. However, that is to some extent a separate matter from the question.

I am arguing that the question is in continued use. It is not the case that it was asked in 2014 and never asked again. As Mr MacDonald said, it has been asked in more than 200 opinion polls, and people understand it. As it has already been approved by the Electoral Commission and it is in current use, I would want to know why it should be tested again in those circumstances. Would that not in itself create confusion?

Alex Rowley

That is a subjective point of view. Is it not important that people have confidence going into a referendum? We are disputing the use of the question that was asked in 2014 because the circumstances have changed significantly since then. As I have said to you before, my view is that it would be wrong for us to go into a referendum before we know the outcome of Brexit. What would we be asking? Would Scotland be an independent state in Europe or an independent state on its own? Arguably, things have changed significantly since 2014, but you just want to stick to the same question.

More importantly in this context, the principle of the bill is that we have to have confidence each time we go into a referendum. Would consideration of any question by independent experts not give us that confidence?

10:30  

Michael Russell

It does. That is why I am happy that the Electoral Commission, when considering the question, said that the question is

“a more neutral formulation”

that

“does not ask for a judgement”

and that it is

“direct”

and

“short and simple”.

Far from being against testing, I am devoted to the principle of testing. However, I am against retesting where a question is current. As I said, if the question had been asked and then forgotten about, of course it would need to be retested. However, this question is current. It has been asked again and again and again.

Far from lacking confidence, I think that those who are challenging the question are, in some cases, attempting to muddy the waters. The question is clear and has passed the test. It is current and continues to be asked. In all those circumstances, it seems strange to argue that in some sense the independence question—because that part of the bill is not just about one question but is about how referenda should be conducted—

Alex Rowley

Exactly.

Michael Russell

The bill says that, in these circumstances, if the question has been approved, that is fine. We might want to say that there should be a time limit on that—I thought that that was what you were about to suggest, Mr Rowley. One might say that the report would expire after a certain period. That is something worth discussing. If the question is still current, I cannot see how you can object to it continuing to be asked. It seems incredible. We would be asking one question in opinion polls all the way through and then suddenly there would be a moment when we were asking another question. How could we have any confidence in the data set in those circumstances?

Alex Rowley

Are we not establishing the principle that each time we have a referendum, whatever the question may be, an independent expert body will test that question?

Michael Russell

The principle is that no referendum should be held without the question having been tested. The question that we are discussing has been tested.

Alex Rowley

That was six years ago.

Michael Russell

The question has been tested.

Patrick Harvie (Glasgow) (Green)

There is clearly a lot of politics in this, but perhaps there is not a huge difference in where we might arrive. Section 3(7) disapplies some of the requirements for consulting the Electoral Commission. You seem to be open to amendments to that and it would be helpful it you should clarify your position. Are you open to amendments to section 3(7) that would change the circumstances in which such consultation is disapplied, in terms of a time limit or expiry date or some other criteria that might give effect to what you said at the beginning, which is that you want testing to happen whenever it is necessary?

Michael Russell

Yes. I am open to discussion of all aspects of the bill. There is a lot of politics clouding things currently. However, it is important that we recognise that the independence question has been tested. Therefore, I am not—as has been represented—against testing; rather I am against retesting a question that is current. Just as I am suggesting that there are different categories of referendum, there may clearly be different categories of question and ways in which they are dealt with.

Patrick Harvie

That would mean that all we are looking for is a definition of what is current.

Michael Russell

I am sure that that can be found.

Murdo Fraser (Mid Scotland and Fife) (Con)

You said at the start of your opening remarks that you wanted the bill to reflect best practice in running referendums. May I quote what the Electoral Commission said in its evidence to the committee? It was very specific and recommended that

“The Bill should be amended to ensure that: 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.”

The commission’s view on that is entirely clear. How can what you are saying to the committee possibly reflect best practice, when it goes against the view of the Electoral Commission?

Michael Russell

Well, I disagree with one element of that. Indeed, if you think about it, the way in which the Electoral Commission has phrased its position—if that is an exact quote, and I have no difficulty in accepting that it is—means that you might have a report one day but then change the question the next day and have to retest it. That is just not consistent. It also does not recognise a current question—a question that is still being asked. That is a very important distinction.

Murdo Fraser

With respect, the Electoral Commission does not make such a distinction. It makes very clear in the submission that it provided to us that any question must be tested, regardless of whether the commission has previously expressed an opinion on it. I do not think that there is any dubiety about where the Electoral Commission stands.

Michael Russell

I am entirely clear that testing should happen, but a question that has been tested and continues to be in use is in a different set of circumstances.

Murdo Fraser

Okay. Your position is contrary to that of the Electoral Commission. May I ask one more question, convener?

The Convener

Yes, if it is on the same area.

Murdo Fraser

It is. I think that we all accept that the 2014 referendum was the gold standard of referendums. All parties—the UK Government, the Scottish Government and all the campaign groups—agreed the basic rules and terms of the referendum, such as the timing, the franchise, the spending limits and, crucially, the wording of the question. All those things were agreed, so the outcome had credibility for everyone, regardless of whether people were on the winning side or the losing side.

If we are to have a rerun of the independence referendum—clearly, I do not want that—do you accept that the same level of credibility and agreement will need to be attached to the terms of the referendum, if the outcome is to be respected in the same way?

Michael Russell

I agree that we should endeavour to work towards that. I, in my role as minister in charge of this bill, will endeavour to do that. You, in your role as a member of this committee and a prominent member of the Opposition, will also want to do that.

I am making my position clear, just as you made your position clear in a tweet last week, in which you said:

“Leave/Remain and a Two-thirds majority required. Bring it on”.

Clearly, there is a difference of opinion on the matter, and in those circumstances we will have to agree to differ.

Murdo Fraser

You will have noticed that there was a wink at the end of that tweet. [Laughter.]

Michael Russell

A wink? I am sorry, I do not think that that came across. Of course, you were responding to a tweet from the deputy convener of this committee, but I will not quote him, too.

The Convener

Perhaps you will describe for us what a wink means.

Angela Constance (Almond Valley) (SNP)

I will try to ask a question that does not involve an emoji.

Cabinet secretary, I understand that, under the bill, you would have a duty to consult the Electoral Commission. Will you say what that means in practice? Will you talk about the timing? I assume that you would not send the commission an email on a Monday afternoon in which you were looking for a response by close of play on Friday. Would the discussion or consultation be fairly open? How would all that work?

Michael Russell

It is important to recognise that, in the development of electoral law, there is a close relationship with the Electoral Commission. My officials are sometimes in daily contact with the commission, on a range of issues. We should distinguish between that type of interaction, which is constant and seeks to deal with the minutiae of electoral law in practice—for example, I have an outstanding correspondence with the commission about a matter of electoral law to do with the ordering of candidates on ballots in local authority elections, with which every politician is familiar; such debates take place all the time—and formal consultation, where there is a duty under legislation to consult on a certain issue.

Such formal consultation would be prepared beforehand. There would be a conversation about how the commission wanted to do it and how we wanted to do it. I imagine that we would always publish; I cannot imagine circumstances in which we would not publish the material that went to the commission and the relevant committee and the material that came back.

Some people have argued that the bill should mandate the commission to make certain decisions. Like it or not, politicians are elected to make those decisions, and I see no indication that the commission would want to put itself in such a position. If we request information or views and we publish the information or views that come back, we can have the debate. The views of the commission are not holy writ; there will be differences of opinion about them, and there will be an open debate.

Angela Constance

I appreciate that a formal consultation would be shared, as would the responses.

The commission is an independent body. In your view, what stops it giving you any advice that it wants to give you?

Michael Russell

Absolutely nothing. I meet the commission from time to time. I met Bob Posner when he was in Scotland the time before last and had a lengthy chat with him about issues. That is important.

I have always been a bit of an anorak on electoral matters and I am interested in how they develop; therefore, I am keen to talk to the commission. I have also talked to the boundary commissions. Last year, I attended the annual event at which all the boundary commissions of these islands get together. I am interested in what they do and there is an interchange of ideas. We may or may not come on to details about the fines suggested by the Electoral Commission and digital imprints. We are in an area of emerging activity and that type of dialogue with the commission is, therefore, important, as are the views of the committee.

There may be things that we cannot do in this bill, such as the digital imprints that I mentioned, because it is difficult to see how that can be done. Over the next few years, however, those will emerge as issues for us to deal with. On the issue of fines, the Electoral Commission has indicated that it wants them to be increased massively. The question is how we will respond to that and take it forward.

Angela Constance

Last week, I questioned the commission to understand more about how it protects its impartiality and integrity, particularly given that there are political appointees or representatives on its board. Do you have confidence in the Electoral Commission, cabinet secretary?

Michael Russell

Yes, of course I do. I stress that that does not mean that I accept everything that it says or that it accepts everything that I say. However, it is a good and positive relationship and I have confidence in the commission.

The Convener

Angela Constance also has questions on the referendum period. Do you want to ask those now?

Angela Constance

Thank you, convener. During our evidence sessions, we have heard about the Gould principle. We were reminded last week that its origins grew out of events and the consequences of having two elections on the same day. Do you intend to adhere to the Gould principle, or do you foresee ever having to hold two electoral events on the same day?

Michael Russell

I am a supporter of the principle, having seen at close quarters the difficulties that can be created. Those of us who were at the counts on election night in 2007 will not forget the experience, with difficulties with ballot papers, electronic counting and all sorts of things going on. We recognise how important the principle is. I was a member of the Arbuthnott commission on boundaries and voting systems, which was a very positive experience under John Arbuthnott; it reflected on those issues.

I am broadly of the view that there should not be two—or more—electoral events on the same day. I want to stick to the principle, if at all possible—that is the best situation—but there are sometimes unavoidable circumstances in which it would have to happen. However, I would be very careful about that and I would not want it to happen. People can get shirty about elections imposing on other events. I remember that the Lanimer committee in Lanark was very offended when there was, twice, a UK general election on Lanimer day, which had to be postponed. Elections can be disruptive, but we do not want them to disrupt each other either, because that becomes damaging.

Angela Constance

There is a six-month period to give adequate time for the administrative process and for a proper debate. When should that kick in? Should it be from the passing of the primary or the secondary legislation?

Michael Russell

I am not absolutely committed to six months. That is the gold standard, but there might be circumstances in which that would change. It would probably have to kick in once the regulations were entirely clear, but that is not hard and fast. What is important is that the administrators know what they have to do and are confident that they can do it in the time that they have. It is not just about the administrators; in a referendum, time has to pass so that participants can register and that whole process has to go through.

As I said earlier, the timescales are more to do with the technical ability to deliver than anything else. I am not utterly convinced about the time needed. Somebody argued in previous evidence that people take 10 weeks to absorb political debate. That would be true only if one was starting from scratch. Many people have already absorbed debates that may become referenda.

In these circumstances, it is about the technical ability to deliver, and we must be assured of that. Electoral administrators are very experienced, and sometimes they can do things faster than they think they can.

10:45  

Angela Constance

My final question might be one for the officials. For the record, could somebody summarise which events need to be consecutive and which can be concurrent? Last week, I was reminded that the printing of the ballot papers occurs fairly late in the process.

Michael Russell

There is quite a long list of things that have to happen; I am happy to furnish the committee with the detail. Can we undertake to write to you about that? Is that acceptable? We will inevitably forget something if we give you the list verbally now.

Angela Constance

Can you just be clear about what has to be consecutive and what can be concurrent?

Michael Russell

Yes—we will send you that information.

Angela Constance

Thank you.

Alex Rowley

In respect of referendums and public information, what is the role of Government and of independent bodies in providing information? Sometimes referendums can be complex, and political parties can be strangers to the truth in terms of the information that they put out there. In the European Union referendum, as we know, many people were not aware of just how complex the whole thing was. Is that a problem? How do you overcome that?

Michael Russell

It is. With regard to political parties being strangers to the truth, you are a former general secretary of Labour and I am a former chief executive of the Scottish National Party, and I am sure that we would not admit to that being true. Nonetheless, there are issues about the respective roles of Government, political parties and politicians in an electoral process, and also influencing bodies. One can legislate for that by designating lead bodies and setting out how they would operate. In a referendum in which the Government is making the proposition, it must be entitled to do so—that is why the referendum is taking place—but there must also be arrangements for information about that proposition, and for and against it, to be distributed by others in a way that is effective. I would want to ensure, as the bill does, that the lead organisation and other organisations are well identified.

The Brexit referendum has taught us that we, as citizens, need to be more rigorous and more demanding about the information that we are given. I am not sure how we can legislate for that, but we will need to think about it.

The Convener

I think that John Mason wants to cover expenses, donations and so on.

John Mason (Glasgow Shettleston) (SNP)

Yes, although first I will ask a more general question. We have had quite a lot of discussion so far this morning. There is not just one type of referendum. Until now, we have not held referenda very frequently. Do you still feel that we absolutely need this bill, rather than producing a bespoke piece of legislation each time we have a referendum?

Michael Russell

Yes—I would not be wasting the committee’s and Parliament’s time if I did not believe that.

John Mason

Despite the fact that the legislation will need to be updated.

Michael Russell

We recognise that—it is why section 37 is important. In a sense, there is a weakness of the panoply of electoral law in Scotland and we are remedying that.

John Mason

Thank you. Next, I want to raise a number of points around finances, donations, expenses, fines and that kind of thing. One issue that has come up is the challenge of checking the permissibility of donations. We have separate electoral registers not only across the UK but even within Scotland, and it is not so easy for organisations, especially smaller ones, to check them. Is there any way through that? Can we improve on that situation?

Michael Russell

That is the case, and I suspect that I am going to answer virtually all your questions in the same way. It is a matter of discussion between ourselves and the Electoral Commission. Of course, if there are people with ideas in that area, we will look at those. As you recognise, we have to balance the ability to scrutinise and to enforce electoral law with the need to eliminate undesirable practices.

There is always a balance to be struck. Nobody wants a succession of small donations coming in below the threshold—as we saw in a recent case—which might or might not be designed to subvert the threshold. Equally, we do not want to interfere when a small number of donations are made in a local authority election campaign by concerned citizens who have a problem in their community, so we need proportionate legislation and regulation. The discussion about what is proportionate for such matters will continue. Last week, you asked the commissioner questions about staff salaries—

John Mason

We will come on to that.

Michael Russell

Those are other areas about which we need to be cognisant of concerns, which might be expressed, but we do not want to get to the stage at which it is impossible for people to stand for election or be involved in the electoral process because the level of administration and record keeping is too great for them to bear. We have to be constantly aware of that.

John Mason

That is a fair point. I am aware of that, having been treasurer of a small organisation in the past.

You might have seen last week’s evidence session on the practical difficulties of having a Scotland-wide or UK-wide register. Are you convinced by the arguments that the expense and effort involved would probably not be worth it?

Michael Russell

In the best of all possible worlds, it could be done, but, at the present moment, it would not be easy or speedy to achieve, and it might get in the way of a lot of other things that are happening. It is difficult to overemphasise the pressures that Brexit is causing on every part of the public sector, particularly south of the border. Additionally, we are moving forward with some fairly radical changes to electoral law in Scotland through this bill, the Scottish Elections (Franchise and Representation) Bill and the Scottish Elections (Reform) Bill so, in the circumstances, I do not want to add a further burden.

John Mason

Given that you have already told me that you will answer all my questions in the same way, I guess I know what you will say next. From the Electoral Commission, we heard evidence that it wants more transparency about money that is given earlier on in the process, because currently, information about where it comes from does not have to be disclosed. There is also the question of assets—one organisation might already have a lot of computers at the start of a campaign, while another has not yet bought them—and staff, as you mentioned. Presumably we would not put such things in the legislation, but should we be looking at them?

Michael Russell

Yes. The legislation is the umbrella, then there are lots of regulations and codes of practice. I have talked to the commission about how much we can do in statute to endeavour to drive out bad practice, such as things that happened during the Brexit referendum. There is a proposal for bigger fines and there are many other ideas. Yesterday, there was a case in regard to which the commission expressed some frustration about the powers that are available to it. In all those circumstances, I am open to helping, if we can.

John Mason

We heard evidence from Professor Justin Fisher from Brunel University London. One of his recommendations was that the

“spending limits for registered and non-registered participants should be reduced significantly to ensure that the designated campaigns are paramount”.

There was a question about “permitted participants”, who are allowed to spend £150,000, because it was felt that, if there were a lot of them, that would clash with the overall spending limit. Do you have any thoughts on that?

Michael Russell

Yes. I would like to see less money spent on election campaigning. Mr Rowley and I pioneered the first voluntary restriction on expenditure during the 1999 Scottish Parliament elections. It was an interesting experience and we think that, by and large, parties kept to the voluntary limit. However, things have substantially changed since then. The difficulty with bearing down heavily on the overall spend is that people might seek to spend illegally. We have to recognise where the debate is and, again, try to strike a balance. In general, I am against people endeavouring to buy elections, as we all should be.

John Mason

Following on from that is the question of fines if people break the rules. Until now, £10,000 has been the maximum fine, and the suggested fine is £500,000. I threw in the idea last week that it could be related to the potential benefit that an organisation would get, but that would be difficult. Is £500,000 reasonable?

Michael Russell

Absolutely. The committee will have a view on it but, if the Electoral Commission wants to set a level of £500,000, I am easy about it. You need to be able to indicate to people that the crime that they have committed is against every one of their fellow citizens, and, therefore, there should be an extremely heavy penalty.

Murdo Fraser

I have a question on that specific point—it is exactly same as the question that I asked the Electoral Commission last week. I do not disagree with the need for penalties, but many penalties are applied well after the event. When a referendum is established, campaign groups on each side will raise and spend money. What is the point of hitting a campaign group with a £500,000 fine six months after the outcome of the referendum, when the votes have been counted and the outcome has been accepted, and the group has, in effect, been wound up and has no assets? I understand the concept, but I do not understand how the penalty is a deterrent in practice.

Michael Russell

I saw that you had raised that objection, and I think that it is possible that the situation that you describe could arise. I do not think that a fine would be levied without careful consideration of the case and without convincing proof. Imposition of a fine would be an indication of the seriousness of the crime. I do not think that one would, in other circumstances, refrain from imposing a fine because there was a view that it could not be collected. In such a case, you would impose the fine and then endeavour to collect it or accept that payment of it is outstanding. People perhaps being unable to pay the fine because they have gone off somewhere is not an argument for not imposing the fine. There might be an argument about whether the level of fine is appropriate, although I am comfortable with the level that has been suggested.

Murdo Fraser

I suppose that my question is whether a fine would be a deterrent if it were to be imposed so long after the event that the campaign organisation had been wound up or had no assets with which to pay a fine.

Michael Russell

We have, in recent times, seen people appearing to be contemptuous of such laws, and we have seen other people who take them seriously. I suppose that we should try to show that we take them seriously.

Patrick Harvie

I would like to follow that up briefly. You will be aware that the National Crime Agency has decided to drop further investigations into Leave.EU and Arron Banks. In responding to that, the Electoral Commission said:

“We are concerned about the apparent weakness in the law, highlighted by this investigation outcome, which allows overseas funds into UK politics.”

In such situations, surely the consequence should not be merely a fine for an organisation, but criminal penalties for individuals. That prospect would be a serious deterrent to people accepting impermissible donations or hiding donations that might be impermissible. A change in the law might be needed to remove that loophole.

Michael Russell

I do not think that it is an either/or situation. The Electoral Commission should have the right to fine—it has the right to fine at the moment, and that should continue, perhaps with an increase in the level of the fine.

However, I do not disagree with Patrick Harvie’s point. I am not commenting on a particular case but, I think that when people are found guilty of serious breaches of electoral law—crimes against their fellow citizens that undermine democracy—they should be subject to the full penalty of the law.

Patrick Harvie

Is there scope for the bill to go further in preventing the use of overseas or impermissible donations in Scottish referendums?

Michael Russell

I am not sure—I need to think about that. There are issues around the primary purpose of legislation: I think that that suggestion might lead us into dangerous areas. However, I will consider the issue. I have had conversations in that regard with the Electoral Commission, but about fines rather than criminal action. I am happy to have more conversation with the Electoral Commission about the matter, as we approach stage 2.

Patrick Harvie

Is there a reason in principle why donations from within the UK but outwith Scotland should be regarded as permissible for a Scottish referendum?

Michael Russell

I have the greatest sympathy with the point that you make. Whether Parliament would agree with it, I do not know. There is probably a view among some political parties that donations from all over should be welcome.

John Mason

I want to touch on one other issue, which is public funding for referendum campaigns. Ireland is in a different position—it has to have a referendum every time it wants to change its constitution even a bit. That means that Ireland ends up with referendum campaigns in which there is not a lot of interest on either side, or on one side, so public money is put in to stoke up a bit of debate and get information out to the public. We have not had that experience, but if we were to have referenda on a variety of subjects, we might. Should there always be a bit of public funding available to both sides? If not, are there some circumstances in which that could happen?

11:00  

Michael Russell

I would be reluctant to commit public money to referenda. There is a difference between information activity—which a Government and others might fairly undertake—and public funding of electoral activity. Both are always controversial. Although I would not rule out such funding absolutely, it would require very careful thought.

John Mason

I have a final supplementary question that is based on what the cabinet secretary has said. We got the impression that the electoral commission in Ireland is a little bit more proactive in providing objective information. For example, when the possibility of misinformation came up during one campaign, it was able to make a clear statement that there had not been misinformation. The Electoral Commission here has been a bit more reluctant to provide much detailed information. Do you have a view on that?

Michael Russell

The Electoral Commission is right to be cautious about getting into a situation in which it is the arbiter of truth, because that is not its role. Others might have that role, and it is interesting to see that.

However, we cannot absolutely absolve the citizen of the duty to be a critical observer of arguments that are put, and of what politicians say. That strikes me as being core to our democracy. We probably need to enable and encourage citizens to be more critical observers of the process, and to be more critical of those who are part of the process, in respect of what they say and the arguments that they put forward. I am a bit reluctant to say that we should have a state body that says what the truth is: such things tend not to end well.

Alex Rowley

I have a question on whether Government and Parliament have a duty. I agree that citizens have a duty to try to become informed. However, on complex issues, is there not also a duty for others? Ireland, for example, also considered education programmes. I certainly found in the 2014 referendum that some of the best-informed discussions that I participated in were in schools.

There is also the role of citizens assemblies to consider, which—again—we know from Ireland. Ireland had a referendum on what was a very difficult issue that I thought would cause a lot more problems, and people there have said that citizens assemblies certainly played a part in ensuring that there was a well-conducted and well-mannered referendum, and that people were informed. Is there a role for citizens assemblies?

Michael Russell

Yes, absolutely. Citizens assemblies are a very good example, and I am glad that we have started down that road. There are also roles for other bodies and organisations that can get involved.

We are living in a dangerous era of, sometimes, post-truth politics and, sometimes, anti-truth politics. What happened in the Supreme Court yesterday will, perhaps, result in a reversal of that tide: there is slow realisation that we require openness and honesty in politics and in public life. Maybe the situation will now change for the better and maybe we will be able to push it that way. If things were to continue as they have been going, I would be very fearful.

There is also a duty on us, as politicians, to stand up in such circumstances, and to have high standards against which to judge ourselves, what we say and how we present our arguments.

A citizens assembly can help with that. When I was talking to people in Ireland who were involved with the one on abortion, I was struck by how they felt. I was told that the advocacy organisations that were required to come and talk to the citizens assembly were allowed—I think—five sides of A4 on which to put their case. That was fact-checked, so they could not just assert things. We politicians assert, quite often. However, those organisations’ cases were fact-checked, and they were not allowed to be put to the citizens assembly if they were not provable and true. If we could have such a situation, we would be a lot better off.

Alex Rowley

Is there a role for Government to support financially such initiatives? That is what I am trying to get to.

Michael Russell

Yes. We are, of course, supporting the citizens assembly. If there are other such initiatives, maybe we should talk about them. I am absolutely open to seeing how that could be done. However, I am also saying that citizens and individual politicians have roles, and that we should take those roles upon ourselves.

The Convener

Gordon MacDonald has questions about the purdah period.

Gordon MacDonald

The bill restricts publication of promotional material by the Government and public authorities in the final 28 days of any referendum in the same way as the UK PPERA of 2000. The Electoral Commission suggests in its written evidence that the purdah period should be extended to cover the full referendum period, with the restriction being applied to a narrower range of material. Is there a need for a change to the purdah period? How do you see that working in practice? What impact would it have on the day-to-day business of the Scottish Government and the Parliament if the referendum period was six months, a year or whatever?

Michael Russell

The purdah period should not be extended lightly or ill-advisedly. The restriction is in order to ensure that the Government does not seek to influence the outcome unduly. That is particularly relevant during election periods, when the Government might be tempted to use pork-barrel politics of various types in order to influence the vote.

A single-issue referendum is different in that regard. It is appropriate that the Government would have some form of stay put on it, but an extended period would disrupt normal business. In a purdah period, ministers do not make announcements, various issues cannot be dealt with and civil servants are not allowed to do certain things, so I would be resistant to anything longer than the 28-day period. That would need to be interpreted carefully; Government could not take action that would influence people on the subject. However, the Government should be free to continue to act in a wide range of other areas: a referendum is not the same as an election.

Gordon MacDonald

If there was a referendum that both the Scottish and UK Governments had an interest in, the difficulty—as we heard in previous evidence—is that the change to the purdah period under Scots law would not bind the hands of the UK Government. In the 2011 referendum in Wales, the Electoral Commission asked both the Welsh and UK Governments to extend the purdah period. Wales agreed but the UK Government did not. What impact could that uneven playing field have on any referendum campaign?

Michael Russell

Concerns have been expressed recently that there might be a desire on the part of the current UK Government to eat into any purdah period and to treat it less seriously, so I am cautious about the issue.

In order to make an agreement between the Governments of these islands stick, we need to trust each other. It is no secret that that trust has evaporated—it does not exist. At present, I would have no confidence that such an agreement could be operated effectively. If there was a more trusting relationship, if the intergovernmental review had come to a conclusion and if there were enforceable checks and balances, that might be possible.

The Convener

Patrick Harvie has questions about online publications.

Patrick Harvie

The section in the bill on publications not by Governments but by anybody else—campaigners, campaign bodies, political parties and members of the public—clearly sets out that the requirement for information about the origin of the publications covers not only printed materials, including newspaper adverts, but other forms of publication. “Publish” is defined as

“make available to the public at large, or any section of the public, in whatever form and by whatever means”.

Clearly, that includes online publications. How extensive is that provision? It seems to me that, as it stands, it would cover social media posts, for example.

Michael Russell

I think that the provision should include online publications. The great difficulty is how to construct the requirement such that it is effective and can be enforced. It is fair to say that all the evidence that the committee has received on the matter expresses the same view, which is that we are at a point at which it is highly desirable for electronic means of communication to be subject to the same restrictions as print material. The purpose is to identify who is saying what and who is publishing what. That is hard to do with electronic publication. It is even harder than dealing with anonymous posters, flyers or leaflets, which are comparatively uncommon. Electronic publication is easy to do and difficult to trace.

We continue to discuss the matter with the Electoral Commission, among others. I would like to find a way to couch the provisions and make them effective. I said earlier that I think that that will come—although on the question whether it comes in time to be included in the bill, or will be dealt with as part of the section 37 process, I think that the latter is more likely.

Patrick Harvie

Is it the Government’s intention, in how it has drafted the bill, that social media posts by an individual that do not include a digital imprint will be regulated in the same way as a lamp-post poster, which does not include an imprint?

Michael Russell

Broadly, yes. I say “broadly” because there are differences in how we would regulate and how we might be effective in regulating them. However, the principle is the important thing: people who are intervening in elections should be identifiable. Anonymous leaflets exist and sometimes the sender can never be found. Equally, anonymous online posts exist and it is even harder to find the person behind them. In a democracy, the principle should be that the people who are taking part in an election should be identifiable.

Penny Curtis (Scottish Government)

I will clarify. We are trying to make sure that we do not capture individuals expressing their personal views. The bill is very much about capturing publications that are intended for campaigning. The difficulties are in determining the margin between the two—how we make judgments around that and how we legislate for it. We acknowledge that doing so is very hard, as was reflected in a lot of evidence, and that things will evolve over time.

Michael Russell

That is a very important distinction that is harder to draw in respect of physical campaigning than it is in respect of electronic campaigning.

Patrick Harvie

Let us take the issue away from independence and instead use the example that you mentioned earlier of a referendum on assisted dying. If an individual publishes on social media that they are concerned about a particular aspect of the issue, or have a reason why such concerns do not apply to them and they want to exercise the right to assisted death, would that be fine? If they were to publish an image that included a message saying, “Vote yes” or “Vote no”, would that be campaigning and therefore be covered by the bill?

Michael Russell

You have presented the difficulty. Would that be campaigning? That will need to be decided.

Patrick Harvie

Under the terms of the bill, such an image would clearly be designed to encourage a result in the referendum.

Michael Russell

I am not sure that it would. We have to understand the language of social media. That becomes the issue. If somebody produces a graphic image that says, “Vote no”, is that a personal expression or is it a campaign? That is the issue: it is difficult to say. If a person published an anonymous series of personal remarks about another campaigner, would that be actionable, and would it constitute campaigning against them? Those issues need to be examined. It is genuinely difficult to know at the moment.

Patrick Harvie

Do you intend to lodge amendments on that, because the bill does seem to be ambiguous?

Michael Russell

I think that, inevitably, we will.

The Convener

That was a very interesting exchange. There are issues about freedom of speech and democratic engagement. If we are not careful, we might begin to curtail them.

Michael Russell

That is absolutely not the intention, so we must be very careful. Everybody knows that there needs to be some form of traceability of people who campaign—that is the purpose of the digital imprint. However, doing that in the 21st century is difficult.

The Convener

Nobody else has questions, so I thank the cabinet secretary for his evidence. It has been an informative and useful session. I also thank committee members for going about the process in a good tone and in the right spirit. The committee will reflect on the evidence that we have heard, and consider our stage 1 report.

Meeting closed at 11:14.