Referendums (Scotland) Bill

The Convener

Under item 2, we will take evidence from Scottish Government officials on the Referendums (Scotland) Bill. I welcome Rebecca Whyte, the bill team leader; Penny Curtis, the deputy director of elections and freedom of information; and Colin Brown and Graham Fisher, who are solicitors in the Scottish Government.

Does Rebecca Whyte want to make an opening statement?

Rebecca Whyte (Scottish Government)

No. I am quite happy not to make one.

The Convener

Okay. I also welcome to the meeting, from Newcastle University, Dr Alistair Clark, who will be advising the committee on the bill.

Given that there has been no opening statement, I will start by asking some very simple questions. In simple terms, why has the Scottish Government introduced the bill? What are the bill’s aims and purpose? Does similar legislation exist elsewhere in the United Kingdom? For the purposes of getting it on the record, and to help my fellow committee members, will you answer those questions?

Penny Curtis (Scottish Government)

The bill proposes a legal framework for holding referendums on matters that are within the competence of the Scottish Parliament. Broadly, it is a technical bill that sets out rules, including those relating to the franchise for any referendum, voting and conducting a poll, designation and participation in campaigns, and spending and donations. The bill is based largely on existing legislation in Scotland and the United Kingdom. It draws on the rules that are set out in the UK Parliament’s Political Parties, Elections and Referendums Act 2000 and the Scottish Independence Referendum Act 2013. We started from the basis of looking at the existing legislation, and we reflected on the process that worked well in 2014. The referendum is considered to have been well run, and the legislation has been adapted to reflect changes in practice since then.

The Independent Commission on Referendums recommended putting in place a framework for referendums in Scotland. The recommendation reflected the fact that electoral law is dispersed, so the bill brings it together in a single framework for Scotland. The bill will ensure that we have in place the rules for any future referendum in Scotland, so that, at the point of the framework being used, the debate can be about the merits of the referendum rather than about the technical detail of the rules.

The Convener

Thank you for that general overview, which was very helpful. There are some differences from the 2013 act. Why has the Scottish Government proposed that secondary legislation be used to initiate the question that might be asked, or the date that is set, for specific referendums, rather than primary legislation, particularly given that the parliamentary scrutiny period for primary legislation is much greater, in terms of its length and intensity, than it is for secondary legislation? Why has the Government chosen to go in that direction?

Penny Curtis

The primary reason that the bill proposes that, in relation to the powers, secondary legislation and the affirmative procedure be used relates to the certainty of the timetabling. That will ensure that we have a predictable timetable from the point at which secondary legislation is introduced, and that Parliament has an opportunity to scrutinise that legislation and agree or not with the proposed question, date and so on.

Adam Tomkins

I am sorry, but I did not understand that answer at all. What is it about the timetabling of secondary legislation that makes things clearer than the timetabling of primary legislation and requires you to act in this way?

Penny Curtis

The time for considering secondary legislation is set out in parliamentary procedures, whereas there is a lot more flexibility in the time that a bill can take to go through those procedures.

Adam Tomkins

I see; it is because our standing orders restrict the amount of time that we can spend deliberating on secondary instruments. So, the Scottish Government thinks that it is appropriate to restrict the amount of time that Parliament can spend considering referendum questions rather than having that in primary legislation.

Penny Curtis

No. We are not looking at the issue from the perspective of restricting the time for scrutiny at all. It is very much about predictability, so that we can enable a referendum on a certain timescale.

Adam Tomkins

Our standing orders restrict the time for which Parliament can consider secondary legislation. Is that correct?

Penny Curtis

They certainly put a fixed timetable around that.

Adam Tomkins

Standing orders restrict the amount of time that we can spend considering secondary legislation, and there is no equivalent restriction with regard to primary legislation. Is that correct?

Penny Curtis

That is my understanding.

Adam Tomkins

So, the intention behind section 1 of the bill, which allows the Scottish ministers to make regulations providing for a referendum—including, as the convener said, the date of the referendum and the question—is to restrict the amount of time that Parliament can spend on scrutinising those issues.

Penny Curtis

No; I would not characterise it in that way. That is not the intention behind that decision. It is not about restricting scrutiny. Our driver—

Adam Tomkins

With respect, your answer to the convener’s question—this was not going to be my line of questioning until I heard that answer—was that the reason for the Scottish Government wanting to proceed by way of secondary legislation rather than primary legislation concerned the predictability of timetabling. That took me by surprise. As I said at the beginning of my questions to you, I did not understand it. You are saying that the predictability that you are talking about is a product of the fact that, unlike the case with primary legislation, the Parliament is restricted in the time that it can spend considering the instruments.

Penny Curtis

That is certainly not the intention behind the decision. You are right to say that the decision concerns predictability, but the intention is absolutely not about restricting scrutiny. Clearly, the Parliament has the ability to scrutinise whatever is brought forward in that legislation and to decide whether or not to agree to it.

Adam Tomkins

But the effect will be that there is a restriction on the amount of parliamentary time that is available. That is understood.

What other countries in the world legislate for referendums in this way? That is, what other countries in the world confer on ministers the power to make regulations setting out referendum questions?

Rebecca Whyte

As I am sure you know, there is a wide range of approaches to administering referendums in various countries. It can be difficult to derive exact parallels between legal systems and the way in which referendums are run. In developing the bill, we considered various jurisdictions that have general legislation covering the administration of referendums, including Denmark, Ireland and Poland. Some of them have general legislation that provides for some types of referendums and not for others. For example, in New Zealand, Governments can initiate non-binding referendums—they have citizen-initiated referendums—but that framework cannot be used for binding referendums.

We considered a number of examples in relation to the issue of what a framework does. I cannot at this moment give you specific examples of places that have processes that are exactly analogous to the secondary legislation process that is proposed for the Scottish Parliament.

Adam Tomkins

I know that you cannot do that, because no other country in the western world proposes to construct a framework for referendums in the way that the Scottish Government proposes to do. What is proposed is unprecedented, is it not?

Rebecca Whyte

As I said, I cannot give you a specific example.

Adam Tomkins

Because there isn’t one—there is not a precedent or an example that you can point to anywhere in Europe or in the Commonwealth that enables ministers to set the date of a referendum and the questions that will be asked in the way that is provided for in section 1.

Rebecca Whyte

That is right.

Adam Tomkins

Thank you.

You talked about binding referendums. Is it the intention that referendums that are established under the bill will be binding?

Rebecca Whyte

Because the referendum framework is intended to provide for any referendum that might be held within devolved competence, it is silent on the question of whether referendums are binding. That is to ensure that there is flexibility for the different circumstances in which polls might be run for different decision-making purposes.

Adam Tomkins

Does the Scottish Government understand there to be a difference between a referendum and a focus group or an opinion poll?

Rebecca Whyte

Yes.

Adam Tomkins

What is that difference?

Rebecca Whyte

A way of reframing that question would be to ask what scenarios referendums would be used in. Is that what you are asking?

Adam Tomkins

My understanding is that referendums are devices that decide things, and decisions, by their nature, are binding. Is that the Scottish Government’s view?

Rebecca Whyte

I see what you mean. Given that there might be referendums in different circumstances, we felt that it would not be appropriate to set out in the legislation a singular process that says, “This is how things will proceed once the referendum has been conducted.” The idea is that it will be possible for the framework to be used for different polls, so there needs to be some flexibility on the circumstances and the packaging.

Adam Tomkins

Okay. To be clear, the intention behind the bill is that some referendums that are established under it might be advisory—non-binding—and other referendums that are established under it might be binding, but we are not quite sure on whom they would be binding.

Graham Fisher (Scottish Government)

There is certainly no provision in the framework for making a referendum legally binding in any way, as with the independence referendum in 2014, which was held under the Scottish Independence Referendum Act 2013. That is the legal position.

Adam Tomkins

That is the legal position under the bill as introduced.

Graham Fisher

Yes. As with the referendum under the 2013 act, referendums under the bill would not be binding in that sense but, in any referendum, the decision of the people might have significant political and moral force behind it, especially given that section 1 provides for the referendum to be held “throughout Scotland”.

Adam Tomkins

But, as introduced, the bill does not resolve and does not seek to resolve the uncertainty that exists in the UK at the moment, including in UK law, about the binding nature of referendum decisions.

Graham Fisher

That is correct.

Adam Tomkins

Yesterday—or certainly within the past few days—the constitution unit at University College London published a blog on the bill. I will read out a quotation from that blog, which I will ask you to reflect on. The author wrote:

“I am aware of no well-functioning parliamentary democracy that gives ministers blanket authority to call a referendum by secondary legislation. The proposal”—

he is talking about the proposal in section 1—

“runs counter to the principles for good referendum design advocated by the Independent Commission on Referendums and the Council of Europe. Both emphasise that the decision to hold a referendum is a big one and ought to be subject to exhaustive scrutiny.”

What is the Scottish Government’s reaction to that?

Penny Curtis

We have set out the reasons for our proposing a secondary legislation power. Clearly, the Parliament will want to consider the bill’s provisions, and it might want to take evidence on that issue as part of its scrutiny of the bill.

Adam Tomkins

Do you accept that the proposal in section 1

“runs counter to the principles for good referendum design advocated by the Independent Commission on Referendums and the Council of Europe”?

Penny Curtis

I do not particularly want to get drawn into the pros and cons of the policy that has been set out in the bill; it would not be appropriate for me to do that. You will want to take evidence on that from ministers as the bill goes through the process.

Adam Tomkins

That would not be appropriate. It also would not be appropriate for me to ask you that, and I was very careful not to do so. I am asking whether you accept the view that was published on the UCL constitution unit’s blog that, as a matter of fact, the proposal in section 1 runs counter to established international standards of best practice on referendums, as set out by the Independent Commission on Referendums and the Council of Europe. Does the Scottish Government accept that verdict or not?

Penny Curtis

I am not entirely sure that I accept all that is set out there. As I set out at the start, there is a process for scrutiny and approval of what is in a referendum question, on the timing and so on, and we are not trying to circumvent that with the bill. Having this debate around whether that is appropriate in the bill, and in the consideration of the bill, gives me a degree of confidence that that will be tested as we go through the process.

Patrick Harvie

Adam Tomkins’s initial questions explored the timing. The regulations would be subject to the affirmative procedure. Has the Government given consideration to using the super-affirmative procedure, which would allow more time and flexibility for scrutiny inside and beyond Parliament of any proposed regulations?

Penny Curtis

At this stage, we have not done that, but we recognise that the committee will want to consider that issue as it looks at the bill.

Patrick Harvie

The Government has not ruled that out.

Penny Curtis

It is not in the proposals that have been made or in the provisions in the bill. We recognise that the committee will look at the issue during its deliberations.

Tom Arthur (Renfrewshire South) (SNP)

Good morning. Will you clarify a matter for me on the issue of scrutiny? I have a very simple question, which is for my own benefit. Section 1 says:

“The Scottish Ministers must consult the Electoral Commission before laying a draft Scottish statutory instrument”.

There is further reference to consulting the Electoral Commission in section 3(2)(a), and section 3(2)(b) mentions the need to lay a report before Parliament. Pre-scrutiny would have to take place before any regulations even reached the Parliament. Is that understanding fair?

Rebecca Whyte

That is correct.

Tom Arthur

There is nothing in the bill that would preclude the Government from consulting more widely.

Rebecca Whyte

There is nothing in the framework that excludes that possibility.

Tom Arthur

So, there would be an extensive period of consultation with the Electoral Commission, the potential for further consultation more widely and, via the process for secondary legislation, a 22-day period during which the Delegated Powers and Law Reform Committee would scrutinise that legislation thoroughly on technical grounds. After that, there would be a further 40-day period for a lead committee—that would likely be this committee—to report on the legislation. During the committee’s scrutiny, a motion to annul an instrument subject to the negative procedure could be laid, or, if the instrument is subject to the affirmative procedure, the committee could recommend that it not be agreed to. Is my understanding correct?

Rebecca Whyte

Yes.

Tom Arthur

I just wanted to clarify what room the Parliament had for scrutiny. That is fine; thank you.

Willie Coffey

Was the referendum on membership of the European Union also advisory?

Rebecca Whyte

Yes.

Willie Coffey

Thank you. I want to ask for your views about overlap with reserved matters. The bill proposes a 28-day purdah period and covers the control of financial donations during a referendum. It also talks about electoral registration: how systems might cope with potential surges and how the rules would be respected in relation to the UK Government, which would have a clear interest in a referendum process in Scotland. In addition, the bill seeks to address how we manage concerns about broadcasting, data protection and so on. Can you give us a flavour of your thoughts about potential overlaps with reserved matters in that respect?

Rebecca Whyte

I am happy to do that. I will take the point about registration first.

As you say, aspects of the registration system—most notably, the website through which voters register—are reserved to the UK Government. Since the devolution of election powers in the Scotland Act 2016, the Scottish Government has been working with the UK Government to ensure that, where our policy intersects with reserved matters, there is good co-operation and close joint working to ensure that the system, while it is controlled by the UK Government, is able to flex to allow for Scottish policy decisions. The best example of that is the specialised user journey for 16 and 17-year-olds through the website, which was put in place after the Scottish Elections (Reduction of Voting Age) Act 2015. Registration issues would be a matter of negotiation and co-operative working with the UK Government.

On the issue of purdah, the framework includes provisions that are analogous to some of the provisions in the Political Parties, Elections and Referendums Act 2000, which limit the activities that public bodies can undertake in the 28 days before a poll. Within the competence of the bill, those provisions can legally bind only Scottish public authorities. If we were organising a poll with a UK dimension, any restriction on UK public bodies would be done by negotiation with the UK Government, as happened in the Edinburgh agreement and as was respected by various public bodies.

With regard to some of the aspects around donations and permitted participants being able to check registers, they will, for UK registers, have access to publicly available versions of the register. Any further access would require the agreement of the UK Government.

Willie Coffey

Suppose that some sort of pressing conflict arose during the process. How quickly could one party influence or stop a process with which it was unhappy, instead of waiting until it was too late, post the process, to complain about something? How quickly could the system respond to concerns that may be expressed by either side?

Rebecca Whyte

Is that in relation to breaches?

Willie Coffey

For any reason. Imagine that there was a broadcasting issue, or we discovered that there was a huge financial donation coming from somewhere and any party raised an objection to that. How quickly could the system respond in order to deal with that during the process?

Rebecca Whyte

During the period in which the Electoral Commission is acting as regulator, it monitors campaign activity. To use your example, if it was felt that a donation was suspicious, that information could be passed to the Electoral Commission and it could take action as it considered appropriate.

The bill includes provision for a stop notice, which is effectively a notice to a campaigner or campaign group during the campaign period that the activity that they are undertaking is in breach of the campaign rules and that they should not do it. There is some provision for ensuring that any issues that are identified during a campaign are dealt with. The Electoral Commission is very familiar with dealing with reports of any issues to do with campaign regulation from its work on other elections and referendums.

Willie Coffey

Did you touch on broadcasting?

Rebecca Whyte

Yes.

Graham Fisher

The legislative framework for broadcasting would remain within the control of the UK Government anyway, and the detail is likely to be subject to the broadcasting regulators, as was provided for in the section 30 order in relation to the independence referendum. Similar provision could be made by a Scotland Act 1998 order, whether under section 104 of the act or otherwise, to provide for broadcasting regulation if the UK Government agreed in consequence of the framework bill.

Willie Coffey

So the Scottish Government would have to obtain agreement.

Graham Fisher

Yes.

Rebecca Whyte

Yes.

James Kelly

Section 3 is on the interpretation of referendum questions. Section 3(5) states that the Electoral Commission has to publish a report on the wording and “intelligibility” of any question, but section 3(7) goes on to say that the whole of section 3 does not apply if the Electoral Commission has “previously published a report” on the question or has suggested the wording of the question or statement.

Ahead of the 2014 independence referendum, the Electoral Commission published a report on the question that was being considered. Section 3(7) could be interpreted as saying that that report stands and that the Electoral Commission does not have a role in looking at the wording of the question or statement in any new independence referendum. What is the policy intent?

Penny Curtis

The policy intention is that, where questions have already been tested and used and are familiar and understandable to voters, there should be no requirement to test again. The process of question testing is quite expensive—it probably costs in excess of £100,000. Our main policy intention in that regard is not to do anything that gets in the way of voter intelligibility around the question.

James Kelly

I gave the example of another independence referendum and the Electoral Commission’s role in the 2014 referendum. Would the Electoral Commission be asked to look again at the question and any potential statement?

Penny Curtis

The framework would not require ministers to get the commission to test the question again if they were seeking to use the same question again.

James Kelly

That is clear, but I think that there will be an issue about that—it is a political issue.

Emma Harper

I am interested in the length of referendum periods. There have been various periods, such as 10 weeks, 16 weeks or 14 and a half weeks. Obviously, we need to ensure that spending and donations are transparent, traceable and clear. Is it the intention to follow what the Electoral Commission recommends, which is a 16-week period, or would there be flexibility? [Interruption.]

The Convener

Emma’s laptop says, “Okay.” Is that the official answer? [Laughter.]

Rebecca Whyte

As the framework is designed to accommodate a range of possible referendums, the referendum period is not specified in the bill. That would be set by the regulations that establish a particular poll.

Emma Harper

I have a wee supplementary question about the issue of binding versus advisory referendums. Could we ask a question that was based on a reserved matter? For instance, Scotland might wish to use a public health policy relating to drugs and alcohol—the Scottish Affairs Committee is looking into that right now. Currently, drugs policy is reserved to Westminster. Under the bill, could a question be asked that is based on a reserved matter as a way to gather information from people in society that would be stronger than asking a focus group but would not be binding because the matter was reserved? Is that an understandable example?

Graham Fisher

The basic answer is that because the framework in the bill is intended to be used for questions within the competence of the Parliament, it would not allow a question about a reserved matter.

Alexander Burnett

Forgive me if I have missed it, but the most important bit—how the winner is decided—is missing and does not seem to be provided for in the bill. Will you point me to the bit of the bill where that is specified? If it is not specified, please tell me how the winner is decided.

Colin Brown (Scottish Government)

It is decided by those who analyse the outcome of the vote. In an advisory referendum, a result is produced and those who look at it make of it what they wish.

Alexander Burnett

I thought that it was said earlier that the referendum could be binding or advisory.

Colin Brown

If it was binding, the rules about its binding nature would say what was to happen.

Rebecca Whyte

The bill as drafted does not include rules that specify how a referendum would be legally binding in the sense that people would be legally obliged to follow the result. The bill does not set out any provision for additional majority thresholds or other ways of approaching the issue, which means that, according to the bill as drafted, it would be a simple majority.

Alexander Burnett

So if it is not specified in the bill, the thresholds for turnout, victory, the qualifying majority and so on would be in section 1, at the discretion of the minister.

Rebecca Whyte

The bill as drafted does not make provision for those matters as part of the regulations.

The Convener

Did the Scottish Independence Referendum Act 2013 include such a provision?

Graham Fisher

No—there was no provision in that act, either. It simply made provision for the vote and the announcement of the outcome.

The Convener

Did the referendum on the EU contain such a provision?

Graham Fisher

No.

Alexander Burnett

Given all the discussions that took place for the previous referendums about what the thresholds should be, have there been any discussions with ministers on that issue? Have they asked you to look for examples in other countries of how a majority has been defined?

Penny Curtis

We have not specifically looked at questions around what different thresholds or turnout might apply, but the fairly consistent approach of ministers has been for a straight majority in the outcome of the results.

Alexander Burnett

Is there no plan for that to be specified?

Penny Curtis

We have no plans to do that.

Colin Brown

There was some discussion before the 2014 poll about what would happen if the vote produced a dead heat. The 2013 act would not have answered that question.

I could be wrong but, from memory, the only legislation for a referendum in the UK that mandated a specific outcome was the legislation for the 2011 alternative voting referendum, which mandated the Government to introduce some legislation in the event of a majority in favour of a particular proposition.

Patrick Harvie

Given that there are certain things that the framework and legislation for a referendum need to do, such as explain how the referendum is conducted, what the rules for participants are, how the count is carried out and the result announced and who carries out those functions, is it the Government’s intention to say that the decisions about what to do with the result are political judgments? For example, it would be for the Government of the day to say that it would honour the decision of the people if the result was a simple or two-thirds majority and would restrict its actions if there was no majority, but, as that is a political judgment, it should not be set out in the legislation or framework. Is that the intention?

Penny Curtis

Having that discussion in a political or parliamentary space is certainly the approach that has been used in most referendums to date.

Patrick Harvie

That would be quite normal.

Rebecca Whyte

Yes.

The Convener

Adam Tomkins has a supplementary question.

Adam Tomkins

My question is not on the binding nature of the result, but on the threshold issue, which Alexander Burnett asked about. If a minister wanted to use the section 1 power to put a question in a referendum, could they set a threshold at more than 50 per cent in the regulations?

Rebecca Whyte

That would not be under section 1; it would be under section 2.

Adam Tomkins

Right—thank you for that. Could a minister, using regulation-making powers under the bill, establish a referendum in which the threshold would not be 50 per cent plus 1, but higher—or, indeed, lower—than that? The threshold would therefore be a question for ministerial regulation rather than primary legislation.

Graham Fisher

Certainly, but Parliament would have control over the affirmative regulations and would have to pass that proposal.

Adam Tomkins

There is no like power in the Political Parties, Elections and Referendums Act 2000, is there? Ministers do not have powers under the 2000 act to change the threshold or, indeed, turnout requirements in the way that they would have under the bill if it were passed in its current form.

Graham Fisher

The 2000 act certainly depends on other legislation that provides for the mechanism for the vote, although there are some ministerial powers in it relating to what can be applied.

Adam Tomkins

You said “other legislation”. Do you mean other primary legislation?

Graham Fisher

Yes. The 2000 act basically relies on other primary legislation although, as I have said, there are some regulation-making powers.

Adam Tomkins

Let us be absolutely clear. Ministers have the potential power under the bill to set threshold requirements or minimum turnout requirements for referendums established by regulation under it, and there are no like powers in the UK legislation.

Graham Fisher

Yes—provided, obviously, that Parliament agreed to those regulations, as the affirmative procedure is involved.

The Convener

Neil Bibby has questions on franchise issues.

Neil Bibby

Obviously, the bill will overlap with the forthcoming electoral reform and franchise bill. When can we expect that to be published?

Rebecca Whyte

The Scottish Elections (Franchise and Representation) Bill has now been introduced and published, and the electoral reform bill is scheduled to be published shortly—that is probably my best estimate on the timing.

Neil Bibby

Okay. On the franchise, the bill has been drafted while the UK is a member of the European Union. Is it suggested that, if and when the UK leaves the European Union, all EU citizens who are resident in Scotland will have a vote in all future referendums in Scotland? What about non-EU citizens who are resident in Scotland—for example, people from Canada, Australia, New Zealand or America?

Rebecca Whyte

It is clear in the bill that EU citizens would be included in the franchise, as currently happens. Ministers have been very clear in many public statements that their intention is to keep EU citizens in the franchise for all devolved elections. That is a clear policy statement.

Neil Bibby

Even if we leave the European Union?

Rebecca Whyte

Yes. I am drawing on a previous job, but my understanding is that there has been quite a lot of consideration of how to do that and that, in a number of Brexit scenarios, EU citizens will continue to be allowed to register and vote in Scotland.

Neil Bibby

But not citizens of Canada, Australia, the USA and New Zealand who are resident in Scotland.

Rebecca Whyte

I am sorry—I will come to that. The Scottish Elections (Franchise and Representation) Bill, which has been introduced in the Scottish Parliament, includes proposals to extend the franchise to nationals of all countries who are legally resident in Scotland, including people from New Zealand. The franchise in the Referendums (Scotland) Bill is set to what the current local government franchise is. It is hoped that the Scottish Elections (Franchise and Representation) Bill will amend the local government franchise.

Obviously, we did not want to prejudge Parliament’s scrutiny of that legislation—it is an important debate, and the Scottish Elections (Franchise and Representation) Bill is subject to a supermajority. Clearly, the Parliament will have a lengthy discussion about the merits of the proposals in that bill. Once it has concluded its parliamentary passage, there will be the ability, under powers in the bill once enacted, to update the legislation to reflect that change in electoral law. In his statement to the Parliament, Mike Russell was clear that his intention is to do that to ensure that the franchise for referendums continues to match the local government franchise.

Neil Bibby

You mentioned the local government franchise. We are talking about referendums in Scotland, but, in times past, local authorities have organised referendums, such as the Strathclyde water referendum and the referendum on the congestion charge. What is the legal position on local authorities running referendums? Could the Referendums (Scotland) Bill impact on them?

Rebecca Whyte

The bill provides for referendums that are held across the whole of Scotland. It does not facilitate referendums that are held in single or multiple local authority areas. Existing legal provision helps local authorities to do that. Given the weight and gravity of some of the rules, particularly on the campaign side, and taking into account wider policy around community empowerment and democratic engagement, it was felt that it would be incredibly heavy handed if local referendums had to follow some of the rules in the bill.

Neil Bibby

However, there are still provisions for local authorities legally to hold referendums.

Rebecca Whyte

Yes, the bill makes no change to that.

Colin Brown

The bill has no impact on that. Obviously, the bill will be out there and local authorities can look at it and decide how they design their local referendums, but it leaves that for local authorities to determine in local circumstances.

Neil Bibby

Thank you.

Murdo Fraser (Mid Scotland and Fife) (Con)

I apologise for arriving late. I was moving amendments to the Transport (Scotland) Bill at the Rural Economy and Connectivity Committee, so I missed the start of the session.

I will ask about the policy intent behind the bill. We know that the Scottish Government has talked about the prospect of an independence referendum. Have ministers discussed with you other issues that they might want to put to a referendum?

Penny Curtis

No. Ministers have not talked to us about other issues, but they have been clear about wanting to have the framework in place so that it is available for whatever issues come up in the future.

Murdo Fraser

Thank you. That is helpful.

In other countries, such as Switzerland, there is a tradition of putting issues to referendums—or, to be precise, referenda. Do you get a sense from Scottish ministers that there is an interest in pursuing more referenda? Is that the direction that we might go in?

Penny Curtis

Ministers have not made any statements about how they see referendums being used more, less or in exactly the same way. They have been clear about recognising that they have a legitimate place in democratic decision making and involvement in Scotland.

Murdo Fraser

You have given me an interesting response. What is that place?

Penny Curtis

I am just being thoughtful about how I set that out. Clearly, ministers have previously used a referendum on an issue of importance in Scotland. I point to that as an example.

In her statement at the end of April, the First Minister announced that we were going to bring forward this bill and she set out other ways in which she wanted to involve the people of Scotland in thinking about the future of the kind of country that Scotland is. Beyond that, I cannot offer more around your question.

Murdo Fraser

That is fine. You have just clarified that, as far as you are aware, nothing else—other than independence—is in contemplation that ministers might want to put to a referendum.

Penny Curtis

Nothing that ministers have talked to us about.

Murdo Fraser

Thank you.

The Convener

Patrick Harvie has a question on transparency.

Patrick Harvie

Earlier, Emma Harper asked some questions about donations. I wonder whether we could explore those and also the questions of publications and campaigning. Has there been an attempt to learn lessons from the two recent big referendums that took place in 2014 and 2016? Some of the concerns about those referendums revolved around so-called dark money and the lack of ability for members of the public to know who was spending what and how. If there have been attempts to learn lessons and to implement changes, could you pick out for me what specific changes have been made, compared with how we conducted the 2014 referendum, to take account of such concerns?

Rebecca Whyte

I will talk about the two recent referendums in turn. The draft referendum bill that we published for consultation in 2016 included a number of updates that were intended to respond to issues that had emerged from the 2014 referendum and pick up on issues from the Electoral Commission’s report on the conduct of that poll. Subsequent changes to that bill, which was then transformed into the one that we are discussing today, picked up further points from electoral stakeholders and the wider debate. Among those updates, I highlight the one on online imprints, on which the drafting that was included in the 2013 act was refined to capture campaign activity more closely rather than restricting individual freedom of speech. There have also been updates to other aspects of campaign regulation.

I turn to the EU referendum, which, as Patrick Harvie said, significantly increased interest in and attention on referendum campaign rules and concern about the ways in which those rules might be manipulated. We have looked at the recommendations of the Electoral Commission and other electoral bodies and groups with an interest in the space. It is fair to say that some of what we might call the policy remedies to those concerns are still very much under development by bodies such as the Electoral Commission. The debate on how best to go about improving electoral legislation as a result of the lessons learned from those polls is on-going. As Mr Russell set out in his statement, we are interested in hearing comments on the bill to help us to consider how we can continue to ensure that it meets our ambition of being of a gold standard.

Patrick Harvie

Do you think that that is achievable within the devolved powers, or are there concerns about the limits on how the Scottish Parliament can legislate to address such concerns?

Rebecca Whyte

There is a difference between elections and referendums with regard to how the rules are devolved. Within the powers of the Parliament, there is decent scope to make a number of improvements to ensure that the framework is as robust as it can be.

Patrick Harvie

I will give an example. In 2016, large amounts of money were spent on online advertising, including graphics that were created by AggregateIQ, and on the leave campaign. Much of that been criticised as being extremely misleading or containing outright lies. Obviously, that campaign would refute such allegations, but they have been made.

Political advertising is not regulated, and it would clearly be outwith our devolved competence to try to change the exemption that prevents the Advertising Standards Authority from doing so. However, if I read it correctly, the reservation in the Scotland Act 1998 on misleading advertising relates to consumer protection and trade and industry. Would it be within our devolved competence to say that we were going to regulate misleading political advertising?

Graham Fisher

My initial reaction is to say that it is complicated. [Laughter.] Certainly, the broadcasting framework, including the rules on political advertising in that sense, is reserved. As I mentioned earlier, the application of the bill would depend on using reserved powers, with the agreement of the UK Government under a section 30 order to make regulations for broadcasting, which is required. That said, there is quite a lot of leeway about what the framework can provide for within the devolved powers. There are other complications and restrictions on that—for example, the Parliament’s making any provision in relation to the BBC is completely outwith its competence, so its ability to do that would depend on provision being made in orders under the Scotland Act 1998. Any particular provision would have to be considered very carefully and explored with the UK Government as necessary to ensure that something robust and reliable could be put in place.

Patrick Harvie

Let us set aside broadcasting for a moment and imagine that there was a referendum on banning cheese. If I were campaigning against that and saying, “If we ban cheese, everyone in Scotland will starve,” that would be a lie and it would constitute misleading advertising. People might be unhappy that they could not eat cheese, but they would not starve. Would it be within our devolved competence to say that people could not publish, in the print media, a misleading advert in that sense? I know that that is a silly example, but I could not think of a better one.

Graham Fisher

I think that I can say yes to that.

Patrick Harvie

It would be devolved.

Graham Fisher

If it were in the print media, I think that that is correct. However, I would want to reflect on the detail of any particular proposal.

Patrick Harvie

What about online?

Penny Curtis

As it stands, the bill regulates matters that happen online. It is when we get into the restriction on political advertising, about which there is particular provision on broadcasting, that we run into the reserved areas.

Patrick Harvie

Thank you.

Adam Tomkins

I have two mop-up questions arising from other things that you have said this morning. Does section 4 of the bill require a two-thirds majority in the Parliament in order that it can be passed?

Rebecca Whyte

We are clear that the bill does not engage the supermajority provisions in relation to franchise, as the protected subject matter is about the Scottish Parliament franchise rather than the local government one.

Colin Brown

And Scottish Parliament elections.

Rebecca Whyte

Yes, of course. I am sorry—I was thinking particularly about the franchise and not section 4.

Adam Tomkins

Thank you. I want to explore your answers to Murdo Fraser’s questions, which were about the issues—other than independence—on which referendums might be held in Scotland. What would happen if a minority Government were unable to get its budget through the Scottish Parliament? Could a minister then lay regulations, under the act that the bill would become, to put that budget to a referendum? Could such regulations specify that the outcome of that referendum would bind the Parliament?

Graham Fisher

I suppose that that would be the case if the Parliament approved the affirmative regulations.

Adam Tomkins

So the power in sections 1 and 2 is potentially so broadly drafted that ministers would be able to use it, subject to the affirmative procedure, to bypass a vote in Parliament in which the budget might be voted down. Thank you. I have no further questions.

The Convener

Graham, I see that you are hesitating and shaking your head.

Graham Fisher

I was going to say that I do not see how that process bypasses Parliament.

The Convener

If you need to reflect on that and come back to us, please do so.

Colin Brown

I suppose that that would be the case if the Parliament saw that as a way of bypassing a deadlock and invited ministers to bring such regulations.

The Convener

I thank our witnesses very much for coming along today and giving us their evidence. I suspend the meeting for about 10 minutes to allow for a change in witnesses.

The Presiding Officer (Ken Macintosh)

The next item of business is a debate on motion S5M-19743, in the name of Michael Russell, on the Referendums (Scotland) Bill at stage 1.

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

I thank the Finance and Constitution Committee and the Delegated Powers and Law Reform Committee for their consideration of the bill. I thank their conveners, Bruce Crawford and Graham Simpson, for their unfailing courtesy, and their members, for the positive nature of the discussion that we had. We had a good debate about the bill in both committees and I hope that that tone will mark all our contributions to today’s debate. I am not looking at Graham Simpson in particular, but if the cap fits, no doubt he will wear it.

Adam Tomkins (Glasgow) (Con)

Will the member take an intervention?

Michael Russell

If I can be allowed to make a little progress beyond the first paragraph, that would be helpful.

The Scottish Government will provide a response to the lead committee before the start of stage 2. I make it clear that I am seeking the maximum and widest possible support for the bill and I hope that I will indicate in what I say today how open I am to changes to the bill.

Adam Tomkins

In his opening remarks, the cabinet secretary talked about the courtesy of the Finance and Constitution Committee and the Delegated Powers and Law Reform Committee. Has the Government matched that courtesy by publishing its response to the Finance and Constitution Committee’s report?

Michael Russell

I am sorry that Adam Tomkins did not listen to the paragraph that I have just read, because it gave the answer to his question. The Scottish Government will provide a response to the committee before the start of stage 2, and it will be a positive response.

The purpose of the bill is to put in place a standing framework of conduct and campaign rules that could be applied to any national referendum in Scotland. My intention is that the rules will meet the highest standards of electoral administration and regulation and reflect international best practice. That will ensure that the debate on a future referendum concentrates on the merit of the issue, not the process.

There is existing legislation that sets out the rules and approaches to referendums held in Scotland, but there is no such Scottish legislation. This bill, therefore, addresses a specific gap in the devolved legislative landscape, which is important considering that we are responsible for our own franchise. I am pleased that the committee has recognised the importance of the work and has unanimously supported the policy intention of the bill. I am sure that the Westminster maxim that the vote follows the voice—and vice versa—will, therefore, be followed.

As with all elections, the needs of voters should be at the heart of our considerations. By establishing a consistent set of rules and aligning those with rules familiar to voters from other polls, we will ensure that it is as easy as possible for voters to participate.

As I indicated when I gave evidence to the Delegated Powers and Law Reform Committee and the Finance and Constitution Committee, I am always open to alternative approaches to aspects of any bill for which I am responsible, where those would more effectively facilitate the policy aims. I therefore welcome the suggestions made by the finance committee on ways to improve the bill.

The committee recommended that the bill be changed to mandate that referendums on constitutional matters must be taken forward by primary legislation and that other referendums should normally require primary legislation. I am happy to accept the committee’s recommendation that changes should be made to section 1 of the bill.

I agree that, normally, a short bill should be the way to trigger a referendum. For the avoidance of doubt, I can confirm that any proposal for a future Scottish independence referendum, for example, should now require a short bill.

I will also reflect seriously on the second question that the committee posed for me, which is whether it is appropriate for some less contentious referendums to be triggered by secondary legislation. I will bring forward further details of my approach before stage 2.

One thing that would be set by the trigger legislation would be the regulated campaign period for the poll, which is also referred to as the referendum period. The committee heard evidence that suggested that a default period should be set. I have always been open to setting a default campaign period, and I am convinced by the evidence that has been put forward that it is in the interests of voters that that should happen and that the period should be 10 weeks. Therefore, I intend to move an amendment at stage 2 to set that default.

Voter information and engagement before and during any referendum campaign is an important matter, as is the scope of restrictions on publications in the days leading to the poll—which, of course, the Scottish Parliament is presently suffering. The Scottish Government works in close partnership with other agencies, such as Education Scotland, to ensure that young voters receive appropriate education in citizenship and political literacy. Electoral stakeholders also undertake specific work to engage with young voters on registration matters. There is a clear role for specific organisations to provide information during the run-up to the poll. We will therefore make changes to the provisions on pre-poll publication restrictions to ensure that the Scottish Parliamentary Corporate Body can continue its business as usual and to allow electoral registration officers to continue their work on promoting voter registration.

The committee has made a number of recommendations on the conduct of polls. I greatly value the expertise of electoral administrators and the Electoral Commission in delivering elections and referendums. We will give careful consideration to the recommendations of the Electoral Commission and other stakeholders on possible refinements to the conduct rules. I can confirm that I will lodge amendments on a number of technical issues, such as to require the chief counting officer to consult with the Electoral Commission on issuing directions. I reiterate my strong intention that administrators should have the appropriate time and resources to undertake their duties to the highest standard.

We have made it clear that the Scottish Government will fund the necessary arrangements for a referendum that is held under the framework. We have reflected on the feedback from stakeholders and have made specific provision in the bill to account for areas of additional costs, such as any additional registration costs that might fall on electoral registration officers. My officials will continue to work with administrators during the implementation of the bill to ensure that they receive all the support that they need to deliver any future poll, which has been promised.

I intend to work with the SPCB and the Electoral Commission to ensure that the funding arrangements in the bill are acceptable and align with the conversation that the Parliament is due to have on the Scottish Elections (Reform) Bill over the coming months.

I will respond positively in due course to the committee’s request for additional information on the costs that are set out in the financial memorandum.

I turn to the recommendations concerning the campaign rules. It is imperative that any electoral event is properly regulated.

Neil Findlay (Lothian) (Lab)

Before the cabinet secretary moves on, will he give us examples of other referenda that might happen? What type of issues might be covered?

Michael Russell

A number of examples were, of course, given during the discussion of the matter in the Delegated Powers and Law Reform Committee, of which Neil Findlay is a member, and in the—

Neil Findlay

I am not a member of it.

Michael Russell

Mr Findlay should allow me to finish. They were also laid out in the discussion in the Finance and Constitution Committee. For example, a range of issues might arise from the work of the citizens assembly that could be considered. That happened in Ireland. I will not go through a list of possibilities, but it is clear that possibilities were discussed and could continue to be discussed.

Mike Rumbles (North East Scotland) (LD) rose—

Adam Tomkins rose—

Michael Russell

A man of such imagination as Mr Findlay, and Mr Tomkins and Mr Rumbles, who have now risen, will have proposals. I have no idea what they are, but I welcome hearing them.

Adam Tomkins

In response to Mr Findlay’s question, the cabinet secretary talked about referendum proposals from the citizens assembly. Why is there no provision in the bill for anything relating to a citizen-initiated referendum?

Michael Russell

Because the assembly has made no such proposals, and it is only just under way. Were it to make proposals, they could be fed in through the Government or by other means. It should be remembered that the citizens assembly is reporting to the Parliament and the Government, so there is a route for that to happen.

I will take an intervention from Mr Rumbles.

Mike Rumbles

I thank the cabinet secretary for giving way. I am not a member of the Finance and Constitution Committee and neither are any of my Liberal Democrat colleagues, so we are unaware of the examples that the cabinet secretary set out to it. Will he do that again now for the benefit of members?

Michael Russell

I said that there were discussions; I did not say that I set out examples. I commend the wonderful Official Report of those committee meetings. They will contain all the information that Mike Rumbles seeks, and I am sure that he will find the time to peruse it.

I turn to the recommendations concerning the campaign rules. The experience of the 2016 European Union referendum demonstrated that campaigning is changing, and not always in a way that benefits voters. If we are to provide the space for rational, respectful debate of the type that has just been demonstrated, we must change our approach to regulating campaigning.

A key area of development is the transparency of online campaign materials. In 2014, Scotland led the way by mandating that online campaign materials needed to have an imprint showing the name and address of the person who was responsible for the material. The experience of innovating in that area provided valuable information about how to improve the approach.

The bill builds on the experience of 2014 by focusing regulation more closely on campaign material itself. I welcome the committee’s support for changes to the imprint rules, and intend to lodge amendments to make a number of adjustments to those provisions. Those adjustments, taken alongside other changes to the enforcement regime, will give the Electoral Commission additional regulatory tools. It will then be able to focus more closely on monitoring campaign activity.

In particular, I intend to remove the “reasonably practicable” exemption for campaign material, which will incentivise online companies to continue to innovate to ensure that material can always be clearly identified as campaign material.

I have also carefully considered the other recommendations regarding excluding individual opinions from the scope of the provision. I intend to lodge an amendment to exempt personal opinion from the imprint rules and, therefore, focus the imprint requirement more closely on campaigners. That will ensure that individuals are not deterred from participating.

Another key element of the regulatory regime is the penalties that can be applied. When I gave evidence to the Finance and Constitution Committee, I said that a major increase in the maximum civil fine was required. I intend to lodge an amendment at stage 2 to increase the maximum fine from £10,000 to £500,000, which indicates the seriousness with which the matter is taken. That will significantly strengthen the powers of the commission and act as a deterrent to breaches of the rules.

I also intend to accept other recommendations made by the commission to change the procedure for some offences in the bill. Taken together, the changes will help to deter those who might consider breaking the rules and ensure that those who break the rules are suitably sanctioned. The experience in the 2014 Scottish referendum was positive, but it was not positive in the 2016 United Kingdom-EU referendum.

The Electoral Commission has made a number of recommendations on donations, including on the frequency of reporting and assets held. However, from discussions with the commission, I understand that further work needs to be undertaken before it is able to recommend a specific set of measures. We will continue to work with it on those matters, and we look forward to developing further refinements when appropriate.

With that in mind, I am heartened that the committee supports the objective of ensuring that the bill remains a dynamic framework that can be responsive to changes in campaigning and electoral administration. The provision in section 37 addresses a specific concern of the electoral community, but I accept the recommendation of the committee to consider how to narrow the breadth of that delegated power. I will lodge a suitable amendment at stage 2.

I turn to the one area in which the committee and I have a difference in opinion. We all believe that all questions should be tested before use. That was the case in the only referendum for which this Parliament has so far taken responsibility, and the process resulted in the changing of the proposed question for the 2014 independence referendum. That question was used not only on 18 September 2014, but in 58 opinion polls over the past five years since then. Polling evidence from Progress Scotland shows that the question is well recognised and regarded as fair. Moreover, 77 per cent of respondents in a recent poll said that they would be satisfied if it was asked again, and only 10 per cent disagreed with that.

However, questions will go out of use and require to be altered as time passes. Therefore, questions should have a shelf life, which might be the duration of two parliamentary sessions. I will lodge an amendment to achieve that at stage 2. [Interruption.] I think that members should wait until I have concluded.

Some of those who propose testing every question, even those that have been tested before, do so out of principle, which I respect. I entirely accept that it is right for me to look at the issue again in the light of those views and the evidence that the finance committee has received. I am therefore in agreement with the committee that I should discuss this matter with the Electoral Commission and come back at stage 2 with any proposals that may arise from those discussions. I am happy to commit myself to doing so in the spirit of trying to reach an agreement that will be acceptable to those who take a positive view of the bill and want it to go forward with the widest support, which I certainly do.

Neil Findlay

Will the cabinet secretary give way?

Michael Russell

No, I am almost finished.

The bill seeks to establish a high-quality set of rules developed specifically for Scotland, which will ensure that the conduct of future referendums is robust, transparent and in the interests of the voters. I thank both committees for their work.

I move,

That the Parliament agrees to the general principles of the Referendums (Scotland) Bill.

The Presiding Officer

I call Bruce Crawford, convener of the Finance and Constitution Committee, to speak on behalf of the committee.

Bruce Crawford (Stirling) (SNP)

One of the ambitions of Scottish devolution was to create a new politics based on a much more consensual approach rather than the more adversarial style of politics that was seen at Westminster. That was perhaps always just a bit idealistic but, my goodness, do we need more consensual politics at this time—perhaps more so now than at any other time in my life. I am therefore glad to say that the Finance and Constitution Committee was able to come to a consensus and to produce a unanimous stage 1 report on the Referendums (Scotland) Bill.

That demonstrates quite clearly that it is still possible for colleagues right across the political spectrum to work together constructively and collaboratively to come to a conclusion. Frankly, if someone had asked me at the beginning of our evidence-taking process whether such an outcome was achievable, I would have been sceptical about that.

I therefore warmly thank my colleagues on the committee for the spirit in which they approached our scrutiny of the bill, particularly their collective willingness to reach a consensus based on the evidence. That enlightened approach is very welcome, given the voracious cynicism and increasing public distrust that threatens to undermine our democratic values. I believe that the report is an excellent example of good scrutiny based on a detailed examination of expert evidence.

It is clear to me, as I am sure it is to the rest of my committee colleagues, that this unanimous outcome would not have been possible without the high level of professional input from our clerking team, led by James Johnston, or the excellent advice provided by our adviser, Alistair Clark. The support that I received from the deputy convener, Adam Tomkins, in this process was also invaluable in achieving the outcome that we did.

We also very much welcome the spirit in which the report has been received by the cabinet secretary and recognise his willingness to consider our findings. He has already outlined some of the areas in which the Scottish Government intends to lodge amendments.

I turn, in some detail, to our key conclusions and recommendations. The committee supports the policy objective of the bill to put in place a generic framework for referendums on the basis that the bill is amended to reflect the weight of evidence that we received.

Almost all our witnesses welcomed the proposal for a generic framework as being consistent with international good practice. There are two main areas in the bill that the committee believes need to be considered again by ministers. The first of those is the powers in section 1 that enable ministers to make regulations under the affirmative statutory instrument procedure to provide for the holding of a referendum. The second is the power in section 3(7) to allow ministers to specify in subordinate legislation the wording of the question in a referendum without consulting the Electoral Commission if that wording has previously been tested.

As far as section 1 is concerned, the expert opinion that we received was somewhat critical of the extent of that power. Indeed, Dr Alan Renwick, deputy director of the constitution unit at University College London, told us that he could find

“no well-functioning parliamentary democracy that gives Ministers blanket authority to call a referendum by secondary legislation.”

Dr Renwick and a number of our other expert witnesses recommended that the power should be removed from the bill. We heard what the cabinet secretary said today in that regard.

Therefore, the committee recommended that the bill be amended so that, first,

“referendums on constitutional issues must require primary legislation”

and, secondly,

“all other referendums will ordinarily require primary legislation.”

Thirdly, the committee recommended

“that if the Cabinet Secretary wishes to identify specific criteria for other referendums which would not ordinarily require primary legislation, he should lodge the necessary amendments at Stage 2.”

The committee also explored the matter of question testing in some detail. The key consideration was whether a referendum question that had been tested by the Electoral Commission should be retested if it is proposed that it be used again in a future referendum. The cabinet secretary explained to us that, although he was in favour of question testing, he was

“not in favour of confusing people.”—[Official Report, Finance and Constitution Committee, 25 September 2019; c 11.]

I do not think that many of us are. In relation to the possibility of a second independence referendum, his view is that the question that was used in the referendum in 2014 remains “in current use”. To support that view, he cited the use of the wording in many opinion polls.

However, in the evidence that the committee received, it was mainly a different view that was taken. In particular, the committee noted the evidence from the Electoral Commission. It told us that it strongly believed that it should be asked to test a question even when that question has been asked before. In its view, that is because contexts can change. It argued that a formal testing process provides assurance to the voter about the integrity of the referendum. The committee therefore recommended that the cabinet secretary should recognise the weight of evidence in favour of the Electoral Commission testing a previously used question. We also recommended that he must come to an agreement with the Electoral Commission, based on that evidence, prior to stage 2.

The committee also examined in some detail a number of other technical aspects of the bill, including the regulation of digital campaign material, which the cabinet secretary mentioned earlier, and, in particular, the provision of imprints on such material. We recommended that the bill could be amended to tighten the requirements for providing imprints on digital material. We also recommended that ministers could provide some clarification of the intended scope of the bill in this area.

On timing issues, we agreed with our witnesses that adequate time is required in advance of polling day for two key purposes: first, to allow sufficient time for the campaign so that voters have sufficient opportunity to be properly informed about the issues; and, secondly, to allow administrators and regulators enough time to prepare for any referendum. We recommended that the bill be amended to include a minimum period of 10 weeks for the regulated referendum period.

On thresholds, we did not consider that there was sufficient evidence to support anything other than a simple majority.

The committee looked closely at section 37, which provides ministers with the power to modify the eventual act by regulations. Some of our witnesses expressed concern that the modification power is very wide. The cabinet secretary explained that the intent of the power was to provide for “dynamic legislation”—he used that term again today—

“and to ensure that electoral legislation is not static.”—[Official Report, Finance and Constitution Committee, 25 September 2019; c 7.]

The committee supports that objective, particularly given the need to respond to the increasing influence of electoral campaigning via social media. However, we also recognised the concerns of our witnesses about the width of the power. We therefore recommended that the cabinet secretary should lodge at stage 2 amendments that provide the necessary assurances that the section 37 power cannot be used for

“amending by the back door”.—[Official Report, Finance and Constitution Committee, 25 September 2019; c 6.]

It is refreshing that, during a period when our politics has become increasingly volatile, our committee system can still deliver robust, constructive and consensual scrutiny of the Executive. That is a credit to my colleagues on the committee and the wider political culture here at Holyrood. The recommendations in the committee’s stage 1 report were intentionally drafted to inform an open discussion about how the bill can be improved.

Finally, we welcome the willingness of the cabinet secretary to seriously consider our recommendations and look forward to further discussing the bill with him at stage 2. In particular, I was encouraged by his comments with regard to the question. I know that the cabinet secretary feels strongly about the issue, but I also know that he will try to find an agreement with the Electoral Commission, if at all possible.

Adam Tomkins (Glasgow) (Con)

Let me open with a quote:

“We have never hidden the fact that I see this bill being used by the Parliament and the Government to create the referendum for independence”.—[Official Report, Finance and Constitution Committee, 25 September 2019; c 4.]

So said Mike Russell in evidence to this Parliament’s Finance and Constitution Committee in September. Let there be no doubt: for the Scottish National Party, this bill is not about referendums in general—it is about indyref 2. This bill was announced by the First Minister in a statement about independence, and—as we heard from the cabinet secretary earlier this afternoon—there is no issue other than independence that the SNP proposes to put to the people of Scotland in a referendum. This bill is designed with only one purpose in mind: to pave the way for an unwanted second independence referendum.

Scottish Conservative MSPs were elected to this Parliament on a manifesto commitment that was crystal clear. We will oppose the SNP’s attempts to steamroller Scotland into an unwanted second independence referendum every step of the way.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

Will the member take an intervention?

Adam Tomkins

I will do so in a minute.

For that reason we will oppose this unwanted referendums bill at every stage, including in the stage 1 vote this evening. We will vote against this bill. We do not support its general principles. We do not want a second independence referendum.

The question of independence was put to the people of Scotland in a referendum in 2014, which Nicola Sturgeon herself described as “once in a lifetime”. We said no and we meant it. However, even now, Nicola Sturgeon is not listening.

If the general principles of the bill are bad enough, its detail is worse.

Stewart Stevenson

Will the member take an intervention before he gets to the detail?

Adam Tomkins

Not at the moment.

Not only is the SNP trying to steamroller us into a second independence referendum; it is trying to rig that referendum by playing fast and loose with its rules. Let us start with section 1, which says:

“the Scottish Ministers may by regulations provide for a referendum to be held throughout Scotland”.

That is an astonishing provision, which the Finance and Constitution Committee unanimously recommended must be amended. There is no equivalent power in the UK’s standing legislation on referendums. No referendum can be held in the United Kingdom without the authority of an act of Parliament, which is the highest source of law that we have, and yet here, Mike Russell wants to give himself the power, by a click of his ministerial fingers, to hold a referendum by order.

Alan Renwick of the constitution unit at University College London told the committee that he knows of no well-functioning parliamentary democracy in the world that gives ministers blanket authority to call a referendum in that way. The Institute for Government agrees. It said that section 1 should be removed from the bill and that primary legislation should provide the basis for any future referendum in Scotland. That is so obviously right that it should not need saying. Referendums decide things. They are not expressions of opinion but formal devices for making decisions. Scotland decided not to become independent of the rest of the United Kingdom in 2014; and the United Kingdom decided to leave the European Union in 2016.

Michael Russell

Will the member give way?

Adam Tomkins

In a few moments.

Those are big decisions, and the process for making them deserves—indeed, demands—the fullest scrutiny. That is why passing a bill, rather than just having Mr Russell click his fingers, should be a mandatory requirement for any referendum. I will give way in one second, but I say to Mr Russell that referendums are about enhancing democracy; they are not about augmenting ministerial powers to rule by diktat. Section 1 of his bill is badly misconceived, and it should be removed.

Michael Russell

It is disappointing that the member, who is a professor of constitutional law, does not know that secondary legislation is not about clicking fingers—but we will let that pass. How does it enhance democracy to ensure that the people of Scotland are not heard when they vote not to leave the EU?

Adam Tomkins

How does it enhance democracy for this Parliament not to be allowed to debate whether there should be any future referendum? That is the question before us today.

I will move on to the role of the Electoral Commission. It has become a much-valued, widely respected and absolutely core aspect of referendums in the United Kingdom that a proposed referendum question must be tested for its intelligibility by the independent Electoral Commission. Referendum questions are proposed by ministers, tested by the Electoral Commission, and, ultimately, set by Parliament. Section 3(7)—a provision every bit as egregious as section 1—would allow Scottish ministers to bypass altogether the Electoral Commission’s role in question setting in the event that a proposed referendum question has been tested at some point in the past. I can find nobody—other than Mike Russell—who thinks that that is anything other than a terrible idea.

The Electoral Commission was robust in the evidence that it supplied to the committee. It stated:

“The Electoral Commission must be required to assess any referendum question proposed in legislation ... regardless of whether the Commission has previously published views on the question proposed.”

That is the Electoral Commission’s view and it is absolutely correct. It was supported by all the witnesses that the committee heard from, including the constitution unit, the Institute for Government and the Law Society of Scotland.

Referendums require the fullest public confidence if their results are to be respected. The Electoral Commission’s expert and independent testing of the question is key to establishing and maintaining that confidence. It should never be bypassed. Ministers have given no good reason for wanting to oust the jurisdiction of the Electoral Commission. It is nothing other than another ill-conceived power grab by a minister desperate to have indyref 2 and to ensure that his side can campaign under flags and banners for “Yes”, as Nicola Sturgeon did in George Square at the weekend and as they all did in 2014.

We need to learn from the experience of previous referendums. We know much more about referendums, referendum campaigns and the impact of referendum results than we did before the 2014 and 2016 constitutional referendums that have left such a mark on Scottish and British politics. It is vital that the Electoral Commission is not merely permitted, but is required by law, to assess all referendum questions, whether novel or recycled, in order that we learn all appropriate lessons from past experience. The Electoral Commission’s full role must be restored and the minister’s attempts to bypass it in section 3(7) must be removed from the bill.

In legislating for electoral events, whether elections or referendums, the paramount principle is surely to put the interests of voters first. The bill fails that test. The Institute for Government said:

“it is imperative that the Scottish government avoid the perception that it is seeking to avoid full scrutiny of any future referendum proposal by intention, or as a consequence of a desire to fast-track the process.”

I hope that the minister is listening and takes heed of that advice. Seeking to sideline the independent expertise of the Electoral Commission is not a good look—the minister should change course while he still can.

As it stands, the Referendums (Scotland) Bill is a bad bill. It seeks to pave the way for a second independence referendum that Scotland does not want, in clear breach of the promises to the Scottish people that Nicola Sturgeon made when campaigning in the 2014 referendum. It is also a bad bill because it purports to give to Scottish ministers powers that no Government minister should have in a well-functioning democracy—powers that no minister who respects the democratic process should want. The bill seeks not only to hold an unwanted second independence referendum but to rig the rules of that referendum. To both of those propositions, the Scottish Conservatives say, “No thanks”. For all those reasons, the Scottish Conservatives will vote against the bill at decision time tonight.

Alex Rowley (Mid Scotland and Fife) (Lab)

In opening for Labour, I acknowledge the work of the Finance and Constitution Committee in holding evidence sessions and producing a report for the stage 1 debate.

The committee supported the bill’s policy objectives. If we, as a country, were to want to move to a more direct democracy in which referenda were used more and more in decision making, the objectives that the bill sets out would be sound. That is not to say that the bill as it stands is sound: the committee made a number of key recommendations on how to improve some fundamental flaws in it.

However, the first point—indeed, the main point—that I want to raise is to question whether there is a need for the bill. Are we moving in the direction of the people of Scotland being engaged in more referendums? Are the people of Scotland at this time demanding more referendums? They want Brexit to be fixed, so if a people’s vote would give us the opportunity to move forward on that, I would say yes.

However, in my experience, the people of Scotland are sick fed up of constitutional conflict. I am not sure that there is demand for a bill on referendums at this time, and certainly not until the current constitutional crisis—which was created by the Tories, and has been made even worse by the Tories—is resolved.

Patrick Harvie (Glasgow) (Green)

It is clear that Alex Rowley has concerns and disagrees with those of us who support independence on the idea of more constitutional referendums. However, did any of the witnesses who gave us expert evidence on the democratic process and on referendums, including those from the Electoral Commission, say that the principle of a framework bill for referendums is in itself a bad idea? I seem to recall that they all supported it.

Alex Rowley

I am coming to that, so I will address Mr Harvie’s point.

The SNP has, on the one hand, tried to portray the bill—just as Mr Harvie does—as simply an administrative procedure to facilitate future referendums, rather than retaining the current ad hoc approach. However, the bill is, of course, only really about one referendum. In fairness, I say that the SNP has made no secret of that—it is the SNP indyref 2 bill. As Nicola Sturgeon has made clear, the bill is being introduced to pave the way for an independence referendum in the current session of Parliament.

Labour cannot support the bill on that basis. We believe that it is not in Scotland’s interests to create, in the midst of the Tory Brexit chaos, even more uncertainty and chaos. Indeed, I suggest that it would, during this chaos, be impossible to put a clear proposition to the Scottish people. Would we be in or out of Europe? Mr Russell suggests that he has had a nod and a wink from some people in Europe that we would be welcomed with open arms. I am not sure who nodded—

Michael Russell

To be entirely fair, I draw Alex Rowley’s attention to the reported remarks—not nods and winks—of Herman Van Rompuy, the former President of the European Commission. He made it clear that although he does not describe himself as a separatist—as he put it—there is a path open, if Scotland were to take it in the usual conventional and constitutional way. That is not nods and winks; that is an open path.

Alex Rowley

If we have learned anything from the failed attempts by the Tories over three years, it is that it would not be as simple and straightforward as that. Mr Russell needs to acknowledge that. He was quoted as saying that the relationship with the rest of the UK and the border between Scotland and England will be governed by the European Union in the event of Scotland becoming independent.

Nicola Sturgeon has rightly expressed concern about our £14 billion trade with the European Union being put at risk by a failed Tory Brexit. However, what about the £50 billion trade that we have with the rest of the United Kingdom? That is the inherent contradiction in the SNP ideology. How is it possible that it would be a disaster for Scotland to leave the single market of the European Union but somehow a triumph to leave the larger single market of the United Kingdom? The majority of our trade takes place in the UK.

Michael Russell

I do not know anybody who has suggested leaving the single market of the United Kingdom. Alex Rowley referred to Nicola Sturgeon’s remarks. They were about making sure that such provision is part of the arrangement between the EU and the rest of the UK. The rest of the UK has indicated that it wishes for a seamless trading relationship. Therefore, there is no problem.

Alex Rowley

Trade with the rest of the United Kingdom is worth £50 billion.

This morning, I read an article in The Scotsman, in which Michael Russell said that it would be down to the governance of the European Union as to how that border, or hard border, would work. How can we in this Parliament argue that a hard border in Ireland is a bad thing, but a hard border between Scotland and England is a price worth paying? The answer is that we cannot.

Most people do not want never-ending constitutional division and chaos. The bill is not required at this time, when we have gone through years of failed Tory austerity, when our public services are buckling under the failures of the Westminster and Edinburgh Governments, and when people are struggling daily to get by.

People are crying out for change. That change will not be delivered by putting up a border and changing a flag. The SNP’s growth commission demonstrates that independence cannot deliver the fundamental change that Scotland needs in our economy and in our society. There is no indication that an SNP-led independent Scotland would avoid the damage that is inflicted by neoliberal economic policies. The SNP growth commission also acknowledges that an independent Scotland would be shaped by foreign direct investment, low taxation and prolonged and intensified austerity—austerity on stilts.

Neither the status quo nor the nationalists’ proposals can provide what Scotland needs. Labour’s alternative for the future of our country is one in which our economy and our society are transformed for the better and for the many. It is a future in which real change has a real impact in order to make people’s lives better. We will invest on a scale that has never been seen before and we will deliver the necessary shift in the balance of power and wealth that we need to make our country fairer.

That will mean £250 billion of investment across the whole UK over the next 10 years, as part of our green transformation fund. It will mean £150 billion over the first five years of a Labour Government, as part of our social transformation fund—

The Presiding Officer

Mr Rowley, I will stop you there. You have moved from the Referendums (Scotland) Bill into election campaigning. It sounds like you are reading out the Labour Party election manifesto. Please get back to the Referendums (Scotland) Bill.

Alex Rowley

Time and again, the First Minister and cabinet secretary have said that the bill will pave the way for independence for Scotland. I am trying to contrast what they propose for Scotland with what the Labour Party proposes for Scotland. We propose a transformational change in the way that our economy and society work, through the types of investment that I am setting out.

The Cabinet Secretary for Finance, Economy and Fair Work is sitting having a wee chuckle to himself, but the growth commission, which Derek Mackay sat on, has made it clear that we would have decades more of austerity as a result of the independence referendum bill that is in front of us.

Rather than try to rig a referendum, the Government here in Edinburgh should bring the bill to a halt, and instead free up time to allow Parliament to focus on the kind of transformation that our country needs. The bill is flawed: members should vote it down.

Patrick Harvie (Glasgow) (Green)

Although it is always great fun to debate borders, flags or the growth commission, I have come here to debate a framework bill on referendums, because I value the work that my colleagues and I on the Finance and Constitution Committee have done in taking evidence on the bill.

The evidence on the basic principle that there should be framework legislation for referendums is pretty clear. I cannot remember hearing a substantial case against it in any of the evidence that we received. However, as the cabinet secretary has acknowledged, the bill will clearly require changes. For example, I have struggled to understand the case whereby a question can be so urgent that primary legislation cannot be used and secondary legislation should be used, while that same question can be so unimportant that scrutiny can be dispensed with. I am not saying “never” to the idea of using secondary legislation in that way, but the Scottish Government needs to be far clearer about the principles and in what circumstances it thinks that that would be justified.

On question testing, a case can be made for a shelf life, but it is not an overwhelming case. I struggle to see why, if there is time to conduct question testing in preparation for a referendum, it should be dispensed with.

We must acknowledge the importance and legitimacy of having an independent body that can advise on democratic processes. Either we trust the Electoral Commission to be that body or we do not. A case might be made for Scotland creating a new independent body to take on those functions. In that context, I am unclear why only political parties that have at least two members of Parliament at Westminster should be able to nominate commissioners to the Electoral Commission. I have no idea why, for example, a Democratic Unionist Party commissioner should have any say in issues reflecting Scottish democracy.

However, there is no case for saying that we will use the Electoral Commission as an independent body but only if we think that it will make decisions that we agree with. The context here is clearly indyref 2 and the fear that some people would seek to muddy the waters by reframing that debate, when it comes, using terms that have never been used in relation to independence but which are solely defined around Brexit.

People have mischievously suggested reframing that debate around “leave” and “remain”. However, Vote Leave and Leave.EU are established and distinct political brands that come preloaded with their political values. Both organisations are permanently associated with their track record of anti-European attitudes, hostility to immigration and serious breaches of electoral law. Although in this chamber we are not allowed to accuse anyone of lying, both those organisations have made countless statements that strain my ability to describe them otherwise.

On the other hand, “remain” is also strongly associated with EU membership, freedom of movement and the single market—positions with which not all supporters of independence agree.

The purpose of the Electoral Commission’s testing is therefore to develop clear advice on intelligibility. It seems to me to be overwhelmingly clear that any proposal to reframe a question on independence around “leave” and “remain” would be rejected by any fair assessment.

Neil Findlay

Mr Harvie rightly lays into the mistruths that have been expressed by the leave campaign, but I have to ask him to reflect on some of the utter rubbish that was in the white paper that was presented for the independence campaign. Will he reflect on that as well?

Patrick Harvie

I have reflected on many occasions on why I did not support the SNP’s white paper. On another occasion we will debate that in detail.

I urge the Scottish Government to have confidence in the Electoral Commission’s process for question testing. If the cabinet secretary does not have confidence in it, the Government should propose an alternative. I am glad that, from the Scottish Government’s point of view, the door does not appear to be closed on testing, so we need to hear more on that before stage 2.

There are many other issues that I wanted to touch on in the brief time available to me: the lessons that we need to learn from 2014, 2016 and more; the issues around political interference and dark money; and political education, which needs to be so much stronger. The Scottish Parliament now has responsibility for our democratic processes, and the integrity of our democracy is clearly under threat. We need to make sure that we are passing legislation that is up to addressing and minimising that threat.

In particular, two issues stemming from the Representation of the People Act 1983 need to be addressed. Digital campaigning is now a core part of the electoral process. The 1983 act is clear on publications: criminal offences arise when publications do not include required information. That is so that people know the source of what they are looking at. That does not apply just to candidates or parties; it applies to everyone. Publishing online, including via social media, is not just like chatter around the water cooler; rather, it is a core campaign tool, and it deserves the same level of regulation.

The Finance and Constitution Committee did not recommend that either the Electoral Commission or a new body should rule on the question of providing objective information, but misleading information is far more powerful in this digital age, when rumours or deliberate misrepresentation can go viral and can become unchallengeable very quickly.

As regards the aspect of the 1983 legislation that proposed criminal offences for misrepresenting the character of an election candidate, we need to find a way to translate that principle into a relationship with referendums, so that the requirements for honesty—not just from campaign bodies, politicians and activists, but from everybody—are applied in the same way in relation to referendums as we expect and hope them to be applied in relation to elections.

Mike Rumbles (North East Scotland) (LD)

The Referendums (Scotland) Bill is a bill that the people of Scotland do not want. It is a fact, however, that the two nationalist parties in the Parliament have the votes to push this fraud of a bill through at decision time.

The Scottish Government has wasted a huge amount of time and resources in bringing this 163-page bill forward. Of course, it is the Scottish Government’s right to waste taxpayers’ money on the bill if it wishes to, but it will face electoral consequences for doing so. It will face those consequences sooner rather than later, because everyone knows that the First Minister has framed indyref 2 as her number 1 priority now. The Cabinet Secretary for Government Business and Constitutional Relations made it obvious in his opening speech and when taking interventions—I thank him again for taking my intervention—that the Government does not have any examples at all to which the bill is relevant, other than indyref 2. That gives the game away, for a start.

Exactly what happened to the First Minister’s declaration that education was the Government’s number 1 priority?

Stewart Stevenson

Will the member take an intervention?

Mike Rumbles

No.

Nicola Sturgeon asked us to judge her Government on its performance on education. Is it any wonder that the First Minister now wants to focus on indyref 2, rather than the state of Scottish education?

The First Minister has made it clear that, before the end of the year, she will ask whoever is Prime Minister to authorise another divisive referendum in order to break up our country—just five years after the UK and Scottish Governments said in the Edinburgh agreement that they would honour the result of the 2014 referendum. Of course, I do not expect the two nationalist parties in the Parliament ever to give up on their nationalist aims to break up Britain, but I did expect that the Scottish Government’s commitment to uphold the 2014 result would last, to quote the First Minister at the time, a certain Alex Salmond—remember him?—for “a generation”.

At least our current First Minister is clear. She wishes to tear up the Edinburgh agreement and focus everything on her ambition to break up Britain, and the Referendums (Scotland) Bill is the first step along the legislative route to doing that. She was warned about the implications by the head of the civil service in Scotland—we have The Herald to thank for publicising that. Not only did the permanent secretary say that there would be “wider implications” for the Government’s business, but the First Minister was also told that constitutional change would mean the “deprioritisation of activity”—in other words, it would have direct implications for getting on with the day job of running Scotland properly.

The Scottish Government has seen fit to ignore—

Graham Simpson (Central Scotland) (Con) rose—

Mike Rumbles

I will give way to Graham Simpson if his intervention is brief.

Graham Simpson

It is on that point. [Interruption.]

The Deputy Presiding Officer (Christine Grahame)

I think that Mr Simpson would like to say something, although members are cheering him on.

Graham Simpson

I am often cheered on by the cabinet secretary.

Does Mr Rumbles agree that ramming the bill through by the end of this year—which is what the Government wants to do—would not make for good legislation?

Mike Rumbles

I quite agree. The bill is an example of bad legislation, and ramming it through regardless is an example of what the Parliament was designed not to do.

As I was saying, the Scottish Government ignored the permanent secretary’s advice.

Michael Russell

Will the member give way?

Mike Rumbles

Will the cabinet secretary give me a minute to make some progress? I will give way to him in a moment.

I have to thank the First Minister for being so unusually clear about what she wants to do. If they examine the detail of the bill, the people of Scotland can also be in no doubt that the SNP Administration will use any device to maximise its support by any means, fair or foul. I refer to section 3(7), which clearly states that the Electoral Commission need not bother to examine the veracity of the proposed referendum question if it has previously done so. The message from the Scottish Government is clear: “We don’t want the Electoral Commission to interfere with our question—it gives us a fine advantage as it is, thank you very much.” I remind members that I said “by any means, fair or foul”.

On that note, I give way to the cabinet secretary.

Michael Russell

As Mr Rumbles will be aware, I made an opening speech—in which he intervened—in which I made it clear that I have proposals for that area and that I accept the committee’s recommendations, for which I had thought that I would be commended.

I add that I am very surprised that the convener of the Delegated Powers and Law Reform Committee should use the word “ramming” when the bill is following the normal procedure for bills in the Parliament, which he knows well. That is highly surprising.

Mike Rumbles

I noticed that the cabinet secretary said that he would come to an agreement with the Electoral Commission—not that the commission is right. It is a measure of the Scottish Government’s integrity that it should even try to get away with that.

I would much rather have been in the chamber today to respond to a debate about the Scottish Government’s domestic agenda, which is about dealing with the devolved issues for which it actually has responsibility. The constitution of our country is the responsibility of our other Parliament, at Westminster. Our Parliament at Holyrood is responsible for important issues that affect Scottish people’s lives. The Scottish Government has told us that it has neither the time nor the resources to work on the promised crofting bill that was dumped so unceremoniously. What has delayed the agriculture bill? Why do we not have a bill to ensure that mental health issues will be treated as well as physical ones? Why do we not have a bill to end homelessness? Where is the good food nation bill? I could list so many more areas that should be addressed but on which the Scottish Government has delayed or dropped bills while it proceeds with this fraud of a bill. It has done so because it values the Referendums (Scotland) Bill and indyref 2 above everything else.

Liberal Democrats do not want the chaos of breaking up Britain to be added to the chaos of Brexit that we already face. We do not support the bill and will vote against it at decision time.

The Deputy Presiding Officer

We move to the open debate. Speeches should be of six minutes or so.

Angela Constance (Almond Valley) (SNP)

When the Finance and Constitution Committee was in the process of finalising its stage 1 report, I was representing the Parliament at the Council of Europe’s Congress of Local and Regional Authorities. Nonetheless, I have no hesitation in associating myself with the report because—as is usual under the stewardship of Bruce Crawford—the committee has pursued the art of the possible and of achieving consensus wherever possible. It is a pity that some contributors to the debate—especially those who are members of the committee—have not taken on board Mr Russell’s opening remarks or his significant concessions.

The committee convener outlined that the recommendations in the stage 1 report were drafted with the intention of informing further discussion and debate on how we get the very best referendums legislation. I believe that the committee’s report can help us to learn from the best of the 2004 referendum experience, but also from the worst of the 2016 experience and its unfolding consequences.

I have never hidden that I have believed in independence since I was eight—I have waved a few flags in my time, and I have campaigned and marched for independence since I was 18, at a time when it was far from fashionable.

In 2016, I was elected on a manifesto commitment that said:

“We believe that the Scottish Parliament should have the right to hold another referendum if there is ... a significant and material change in the circumstances that prevailed in 2014, such as Scotland being taken out of the EU against our will.”

I want our journey towards independence to be built on the highest of international standards, so we cannot pick and choose when we apply that gold standard. Therefore, I want any referendum on Scotland’s constitutional future to be built on primary legislation, because fundamentally I want this Parliament to decide and every member of it to have the opportunity to choose to vote for or against.

I have never expected or demanded either citizen or politician to abandon their own deeply help convictions and conscience. We can seek only to persuade, and we can never do that by closing down debate or scrutiny.

Ultimately, it should be this Parliament that decides whether there is a referendum, the details of the legislation and what powers to confer—or not—on ministers. For the record, I support amending the bill so that it includes a minimum campaign period. Such a measure is based on good democratic practice, and I welcome the cabinet secretary’s commitment to it.

The issues of the referendum question and testing were robustly explored by the committee. I am somewhat surprised that there seems to be some concern about conspiracy, given that there are different views on the issue across the wider yes movement. My own view is that it is entirely logical and legitimate to say that the 2014 question has already been tested by the Electoral Commission and that it remains current because it has been asked 200 times since 2014. Also, there is nothing to prevent the Electoral Commission from publishing and sharing its views in the future.

Nonetheless, I accept that it is prudent and mature of the committee to ask both the cabinet secretary and the Electoral Commission, in the first instance, to go away, find some space, look at the evidence together and see whether they can come to an agreed way forward to bring back to members prior to stage 2. I can support that approach, despite my own grumbles about some aspects of the Electoral Commission’s structure as a UK-wide body. I will not repeat Patrick Harvie’s comments—I raised those issues at committee.

Although the cabinet secretary is characteristically up front about his own thinking and instincts, in his remarks today and at committee, he has consistently indicated that he remains open to on-going discussion. I was tempted to say that he is being uncharacteristically flexible, but that would be unfair, as very few people will have observed the inflexibility of Westminster in recent times without seeing the self-destruction of the UK Government’s approach and seeking to avoid it.

The UK Government has failed to generate consent and trust among remainers, and it has even lost the support of some of its own. If Brexit has taught us anything, surely it is what not to do if we want to persuade and lead. We have to reach out, and we have to reach out to those of a different opinion.

Although we live in uncertain times, I believe that history will show that ignoring the highest remain-voting part of the UK will lead to the demise of the UK. I suspect that I am not alone in that thinking, and it may be the reason why the UK Government is running scared of a section 30 order—

The Deputy Presiding Officer

I was just thinking that you were making an excellent speech, as you were actually speaking to the bill at stage 1, but you are just beginning to drift into electioneering. You are just easing yourself into it; nevertheless, that is what you are doing, so stop.

Angela Constance

I will take your advice, Presiding Officer, and stop. However, I end by saying that, whatever views about Scotland’s constitutional future people may hold, the bill could help us to build a future and build a consensus.

The Deputy Presiding Officer

I remind members that we are discussing stage 1 of a very technical bill, and it would be useful if they would, in the main, speak to the bill.

Alexander Burnett (Aberdeenshire West) (Con)

I thank the committee clerks for their considerable efforts in producing the report. I also thank those who gave evidence on the bill, both written and in person. As ever, their time and effort are much appreciated.

Like most committee members during multiple evidence sessions, I focused on a particular theme. My area of focus was the role of the Electoral Commission and the testing of any referendum question, and it came as little surprise that there was unanimous agreement among those who gave evidence. I hope that the cabinet secretary has taken that on board and ensures that the bill that he is seeking to take forward meets the level of credibility to which I hope he aspires.

The fact that ministers will be able to set referendum timing and questions in secondary legislation is cause for concern. That is not a party-political point, but a democratic one. Would the cabinet secretary be happy when the shoe is on the other foot and such important details are at the discretion of a Scottish Conservative minister?

The truth is that the whole bill is a political point, from the speed at which it is being rushed through Parliament at the expense of existing responsibilities, to the pretence that it is not a foundation stone for a second independence referendum. That hypocrisy can even be seen in the bill, otherwise why would a bill that will cover only devolved issues include a specific provision to approve a previously asked question when that question is a reserved issue? The only question that has been asked before is the one on independence, and it is the only one in relation to which the SNP seeks to legislate against scrutiny.

The scrutiny that is required is very clear. That has been set out by the Electoral Commission and it covers requirements for clear timescales, focus groups, interviews, geographical testing, accessibility and more.

I asked Dame Sue Bruce, the Electoral Commission’s commissioner with responsibility for Scotland, what her position is on the fact that panels from whom we had taken evidence had been very clear about not only the need to test the referendum question but the Electoral Commission’s role in that, including when the question has been asked before. Her response could not have been more clear. She said that she strongly believes

“that the Electoral Commission should be asked to test the question. I refer again to putting the voter at the centre of the process. We think that formal testing of the question helps to provide confidence and assurance to the voter and to the Parliament that is posing the question and, with regard to the integrity of the process, to establish that the question is clear, transparent and neutral in its setting.”—[Official Report, Finance and Constitution Committee, 18 September 2019; c 37.]

Based on the evidence, it was not surprising that the committee recommended in its stage 1 report

“that the Cabinet Secretary recognises the weight of evidence ... in favour of the Electoral Commission testing a previously used referendum question and must come to an agreement, based on this evidence, with the Electoral Commission, prior to Stage 2.”

However, we must wait to see whether that will happen.

In committee, when I asked the cabinet secretary repeatedly about his view of testing a referendum question, his response—despite the evidence that we had heard—was that the question had already been tested. When probed on why the matter was beyond question, he said,

“I am not in favour of confusing people. If a question has been used again and again and it continues to be in use, it would be a serious step to try to throw it out.”—[Official Report, Finance and Constitution Committee, 25 September 2019; c 11.]

As an aside, I do not think that the cabinet secretary has much regard for the intelligence of the electorate if he thinks that they would be confused.

I believe that it is a grave mistake to simply accept a question because it has been used previously. There is an unfortunate arrogance in the cabinet secretary’s position. What he is really saying is that he knows best and that he is afraid to seek and trust the Electoral Commission’s endorsement. Arrogance and fear—that is no way to legislate.

The cabinet secretary’s rejection of the Electoral Commission’s wish to be involved demonstrates scant support for the protectors of our democracy. We need to ensure that the question is as fair to the electorate as possible. As ever, the Scottish Conservatives think that it is important that every question is tested and created using an evidence-based approach.

All of us—the Electoral Commission, MSPs and the electorate—are learning on a daily basis. The only person who appears to have given up on learning—possibly in line with his party’s education record—is the cabinet secretary. Many lessons need to be reflected in the bill, not least the fact that Scotland wants to move on from repeating referenda. The Scottish people rejected separation in 2014 and see this constant constitutional posturing as nothing more than disrespect for their vote. I say to the cabinet secretary that it is never too late to start learning.

Tom Arthur (Renfrewshire South) (SNP)

I am grateful for the opportunity to speak in the debate. I thank the clerks and my colleagues on the Delegated Powers and Law Reform Committee and the Finance and Constitution Committee. I associate myself with the remarks of Bruce Crawford, who spoke in his capacity as convener of the Finance and Constitution Committee. The work that both committees undertook was serious and rigorous. All committee members played an important part, and the bill will be strengthened as a consequence.

I encourage anyone who reads the Official Report of today’s proceedings or who watches the debate at home or in the public gallery to look at the Finance and Constitution Committee’s report and at the work of committees. Although a rather partisan and political debate is taking place in the chamber in the shadow of a general election campaign, the work that the committees undertook was serious and considered, and it reflects the best of the Parliament. I hope that, as the debate progresses, more of that ethos and spirit will come into members’ contributions.

I welcome the bill and the cabinet secretary’s response, which takes cognisance of the recommendations of the DPLR Committee and the Finance and Constitution Committee. The proposal to increase the minimum fine from £10,000 to £500,000 is welcome and will, I believe, command support across the committee. The principle for a default 10-week regulated period is to be welcomed, too. I also welcome the cabinet secretary’s willingness to consider the use of regulation-making powers, as provided for in section 1, and how they can be more clearly defined. I welcome the fact that matters such as a future independence referendum would be dealt with through primary legislation. That is a sensible way to approach any future referendum.

The bill and our deliberations on it offer us the opportunity to consider the operational matters and the mechanics of any future referendum in as close to a sterile political environment as possible, meaning that any future bill that paves the way for a referendum on Scottish independence can focus primarily on the merits of whether that question should be asked, on which we all have strong views.

I have a degree of sympathy for all positions that have been expressed on question testing. As the committee’s report makes clear, the committee was unanimous in recognising the weight of evidence that was submitted.

I note that, to my knowledge, there have been six national referendums in Scotland. Three have been specific to Scotland and three have been UK-wide referendums. The first three referendums took place in 1975, 1979 and 1997—three referendums over 22 years—with two being on devolution and one concerning membership of the European Union. However, in the space of five years, we have had three more referendums.

There is a trend for more and increasingly frequent referendums. They are a useful tool for taking decisions that perhaps go beyond those that it would normally be considered appropriate for MSPs to take. In the committee, certain examples were highlighted. The idea that questions might be referred from a citizens assembly requires further investigation. In the scenario that a question was referred from a citizens assembly, after considerable deliberation and much public discussion, the vehicle of a statutory instrument might be a more appropriate means of initiating a referendum.

I note from the Finance and Constitution Committee’s report that reference was made by the DPLR Committee to using a super-affirmative procedure. That would give the opportunity for any aspects of a referendum question that was proposed in such a scenario to be amended and discussed in some detail. Although it should be the norm for referendum questions to be considered via primary legislation, there is a case for retaining the power to create referendums through secondary legislation. That should be considered at stage 2 and I look forward to having discussions with colleagues on the Finance and Constitution Committee and, potentially, the Delegated Powers and Law Reform Committee.

I note that the Finance and Constitution Committee was unanimous in supporting the policy objectives of the bill. I appreciate that today’s vote is on the bill’s general principles and that some Opposition members will feel that they are unable to vote for them but, given the unanimity of support for the policy objectives, I urge Opposition members to abstain and allow the bill to progress to stage 2 so that it can be amended and their concerns can be addressed. The cabinet secretary has recognised those concerns and shown a willingness to engage constructively with all members and committees in taking the bill forward.

Neil Findlay (Lothian) (Lab)

There are days when this Parliament inspires and motivates me and delivers for our people, and there are days when it depresses me—when it navel gazes and its focus is on issues that command the energy and attention of the political class or it is used for narrow party advantage that completely ignores the plight of the people we are sent here to represent. I am afraid that this is one of those latter occasions.

In 16 years of elected politics, I have not had a single person come to me and demand that we put through a framework bill on how we conduct referendums. Let me set out clearly what people come to me about and let me tell members what issues are affecting my community. I would bet my last penny that those are the issues filling the mailbox of almost every other member of the Parliament and taking up their time at constituency surgeries.

My constituents in Stoneyburn want to know why they no longer have a general practice in their village for the first time since the formation of the national health service.

The Deputy Presiding Officer

I am sorry, Mr Findlay; please sit down. I know that this is difficult for everybody. This debate is on stage 1 of a bill on technical issues. Yes, speak against the bill—absolutely—but I do not want to hear detailed political points being made instead of discussion of the bill. You have made your general point that you think that there are more important issues. That is your position, but let us discuss the bill. That is what the debate is about.

Neil Findlay

Presiding Officer, I am going to expand on the argument that I am putting across. I need to exemplify the points that I am making, and that is what I am attempting to do. You will see where my argument goes if you allow me to make those points.

The Deputy Presiding Officer

I will give you a bit of leeway, but do not stretch it too far.

Neil Findlay

My point is this: why are my constituents not seeing Parliament address that issue? Why are my constituents across the Lothians who are trying to find somewhere to live and who cannot access a council house and cannot afford rising rents not afforded a citizens initiative or a referendum on a proposal to address homelessness in this city? I will bet that they would want one.

Tom Arthur

Would Neil Findlay like those issues to be discussed in a future citizens assembly? If significant and radical proposals came forward, would he like them to be put to the people in a referendum?

Neil Findlay

We are starting to move into a whole different set-up. That would need wide discussion.

There are other issues. For example, constituents of mine from East Calder are waiting 54 weeks for orthopaedic operations. They are supposed to have a legal—

The Deputy Presiding Officer

I am sorry, Mr Findlay, but I have warned you already. You are now going into constituency details. Please sit down. I understand your position, but do not abuse it. You do not agree with the bill—that is fine—and you think that there are better things to deal with. You have said that. Now please tackle the report. Attack that. I am not going to listen to constituency details. I will ask you to stop and sit down otherwise.

Neil Findlay

You can do that, but my constituents want to know where the initiative in the Parliament is when ministers in the Parliament break the law more than 100,000 times. We are seeing a new referendum initiative. Where is the new initiative to hold to account ministers who break the law? Where are initiatives coming forward in the Parliament to address drug deaths? We have not even had a debate about drug deaths, never mind a referendum or a citizens assembly—we have had none of that. There are no new initiatives coming forward to address one of the biggest crises that we have, but we want to create new legislation on referendums for something that might never happen. We know that the only thing that the SNP wants to happen is Mr Russell to have his day taking through a bill that paves the way for an independence referendum.

Where is the opportunity for a citizens initiative or a referendum on the Government’s failing education policy? That is supposed to be the Government’s top priority. There is no opportunity for us to hold the Government to account via a referendum or a citizens initiative. As we have already heard today, the Government has not had an education debate for two years. Where is our ability to hold the Government to account?

If the bill proceeds, I will look to lodge amendments on having a third option or additional options on ballot papers for any future referendum and on different citizens initiatives that will hold the Government to account when it breaks the law 100,000 times. If all that we have is more binary referendum choices, we will create more divided and more depressing politics.

I adopt the default principle that powers should be devolved to the lowest level unless there is an overwhelming or rational reason not to do so. I believe that that is a sound principle and that we can debate each topic that comes forward and deliver power to the most appropriate level. That is what I believe in, but that debate is for another time.

The bill should not deflect us from dealing with the immediate issues that our people face. People are out there lying in doorways and shivering on the street. I think that, today, people will rightly look at this place and wonder what relevance it has to their lives.

Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

Talk about depressing politics.

I am grateful for the opportunity to contribute to this debate on the Referendums (Scotland) Bill, which, as it says, is for

“An Act of the Scottish Parliament to make provision for the holding of referendums throughout Scotland; to make provision about such referendums and other referendums held under Acts of the Scottish Parliament.”

It is undeniable that the tectonic plates of Scottish politics have shifted somewhat cataclysmically since 2014. Therefore, the importance of getting the legislation right cannot be overestimated.

The two key issues in the Finance and Constitution Committee’s stage 1 report that I would like to focus on are electoral registration and political literacy, with particular reference to sections 4 and 28 of the bill. I declare an interest as a former modern studies teacher and development officer for the national qualifications at Education Scotland, where I contributed to the curriculum for excellence briefing paper on political literacy that was published in August 2013.

The UK-wide introduction of individual electoral registration, or IER, did not happen until after the 2014 referendum. The committee was told that

“It is widely thought that one of the effects of individual electoral registration has been a reduction in the completeness of the electoral register”

and that

“research shows that young people and students in particular were negatively affected.”—[Official Report, Finance and Constitution Committee, 11 September 2019; c 35.]

According to the Electoral Reform Society, 9.4 million people in the UK are missing from the electoral roll, which is nearly 14 per cent of the population. Although the process of individual electoral registration currently remains a reserved matter, that should not deter discussions on how to improve voter registration in the interests of democracy.

In the run-up to the 2014 referendum, I recall attending a meeting in the City of Edinburgh Council chambers with Mary Pitcaithly, who was the chief counting officer for the Scottish independence referendum. I was there as an employee of Education Scotland. I am sure that I am not breaking any confidences when I say that it became clear that there were varying approaches around the country to section 26 of the Scottish Independence Referendum Act 2013, which focused on encouraging participation. Adam Tomkins is absolutely right when he says that we need to learn lessons from referendums. Perhaps the Government can reflect on that and strengthen the provisions in section 28 of the bill, which focuses on participation.

The Electoral Management Board for Scotland advised the committee:

“Rationalising existing laws to create a single, consistent framework governing referendums offers many benefits to the voter, to campaigners, the regulator and electoral administrators and to the extent that the draft Referendums (Scotland) Bill contributes to this objective, the EMB see this as a wholly positive policy direction.”

In the interests of democracy, I hope that members agree with that. It is particularly important that young people are encouraged to register, as we know that individual registration has impacted negatively on that cohort.

I take issue with some of the evidence that the committee received from the Stevenson trust for citizenship. It noted

“gaps in the availability of Modern Studies programmes across Scotland, lack of clarity about the aims and acceptable approaches in dealing with political questions and political literacy in the classroom”.

However, modern studies is not a programme. It is a core part of the social studies curriculum area, which every pupil in Scotland should have experience of until the end of their broad general education. They may then choose to study it in more detail at the level of national 4 or 5, higher or advanced higher.

The trust went on to reference its own research, which polled just 21 schools—that is not even 6 per cent of Scotland’s secondary schools.

Neil Findlay

Like Jenny Gilruth, I was a modern studies teacher. Does she recognise that many schools do not teach modern studies at that level?

Jenny Gilruth

I am not sure what Neil Findlay is referring to when he says “that level”. Do you mean higher than—

The Deputy Presiding Officer

You cannot just have a wee conversation across the chamber. Mr Findlay might wish to intervene again. I do like to earn my keep. Mr Findlay, do you wish to clarify your intervention?

Neil Findlay

The point that I was making was that not all schools teach modern studies at senior level.

Jenny Gilruth

I am coming on to address that point.

There is some evidence to substantiate that point. The 2012 social studies curriculum impact report identified that 20 per cent of Scottish secondary schools did not deliver modern studies via a subject specialist. That means that, up to a certain level, they might deliver it via a history or geography teacher.

Mr Findlay is correct. The teaching of modern studies will be important if we have another referendum, because the proposed franchise will be based on the one that is used for local government and Scottish Parliament elections, which includes EU citizens and 16 and 17-year-olds. I hope that the Education and Skills Committee picks up the issue as the bill progresses. We need to ensure that the next generation gets the knowledge, understanding and skills that modern studies develops, which will allow young people to identify bias and exaggeration, for example, and make an informed choice when they vote. In the era of fake news, the pivotal role of modern studies in doing that has become even more apparent.

The policy objective of the bill is to

“ensure that future referendums on matters that are within the competence of the Scottish Parliament maintain the high standards achieved by the referendum on Scottish independence in 2014.”

The 2014 referendum is often lauded as the gold standard of referenda. There was, for the most part, consensual debate, discussion and a white paper—like it or not. Up and down the country, whether people were yes or no, they became engaged in the political process in their droves. We secured the highest ever voting turn-out in the British isles, with 84.5 per cent of those who were registered to vote doing so.

We need only consider the situation in Catalonia to reflect on why the bill is so vital. Whether you were yes or no in 2014, no honest democrat accepts the political persecution of those who support Catalonian independence as just. The former vice-president of Catalonia was sentenced to 13 years in prison, the former speaker of the Catalan Parliament was sentenced—

The Deputy Presiding Officer

I am getting an uneasy feeling—you know what I mean. Please go back to the bill. I am trying to be subtle.

Jenny Gilruth

With due respect, Presiding Officer, what I am saying links to why the question and the debate are so important. In Catalonia, there were obviously a number of issues that did not allow the democratic process to prevail in the way it should. Should I move away from that point, Presiding Officer?

The Deputy Presiding Officer

No, I am just wary—please continue.

Jenny Gilruth

As we watch on at the horrific actions of the Spanish Government, we must make doubly sure to tread a path of civility in our use of language and in our actions in this Parliament in the face of the next Scottish independence referendum.

I spent my entire career in education trying to get young people interested in politics. They enjoyed watching Annabel Goldie dangle from an abseil in 2007; they were mildly amused by the Tories “Brown bottles it” stunt. However, it was 2014 that engaged a generation of voters for the very first time. Let us make sure that we get it right for the next generation; let us make sure that they are the next part of Scotland’s story.

Graham Simpson (Central Scotland) (Con)

It is good to be able to speak in this debate on the Referendums (Scotland) Bill—and I will speak about the bill, Presiding Officer.

On the face of it, the bill looks perfectly innocent. It states that it is:

“An Act of the Scottish Parliament to make provision for the holding of referendums throughout Scotland; to make provision about such referendums and other referendums held under Acts of the Scottish Parliament”,

and it comes complete with sections on the franchise, conduct, campaign rules, agents, registration and so on. That does not ring any alarm bells. However, there are all kinds of bear traps lurking in there for the unwary, and some sharp-eyed souls out there spotted them immediately. For accuracy purposes, this bill should be renamed the independence referendum (preparedness for) (cranking up grievance) (Scotland) bill, because that is what it is.

Two committees of this Parliament have raised serious concerns on the back of the evidence that has been received. The DPLR Committee, which I convene, and the lead committee, the Finance and Constitution Committee, have both done an admirable job of scrutiny. They listened to the evidence on the preposterous idea that any future referendum on any subject would be set up using subordinate legislation.

The Law Society of Scotland said:

“We have reservations about the use of subordinate legislation for the most important questions relating to the Constitution.”

What could it mean? It added:

“Such issues require full and proper scrutiny which subordinate legislation does not provide.”

The Faculty of Advocates said:

“Disregarding the issues about legislative competence, it is difficult to envisage circumstances in which the holding of such a referendum and the framing of the question to be put would be more appropriately initiated under secondary legislation than by the Scottish Parliament considering and debating a Bill.”

Dr Alan Renwick of University College London, who has already been quoted, said:

“A power to call a referendum on any subject by regulations would be highly unusual. In fact, I have found no well-functioning parliamentary democracy that gives Ministers blanket authority to call a referendum by secondary legislation.”

I did some research on that and I can find no examples anywhere—not just in well-functioning parliamentary democracies. It would be a world first, and not one to be proud of.

Stewart Stevenson

Will the member give way?

Graham Simpson

No.

I do not speak for the DPLR Committee in this debate, but when we had Mr Russell before the committee, I opened the questioning. He and I danced around the subject of what a referendum might be used for. I suggested, perhaps rather cheekily, that there might be a vote on bin collections—which is not such a bad idea, given the state of the service in some parts of the country. The cabinet secretary was, to be fair, less combative than usual, and when we discussed where primary legislation might be appropriate, he proffered moral issues such as end-of-life questions.

However, we all know that this bill is not about bin collections or moral questions. It is about one thing and one thing only: independence. To suggest that the details of another vote on Scotland’s constitutional future, which we decided on in 2014, should be rammed through Parliament by subordinate legislation is an outrage.

The stage 1 report notes that the DPLR Committee said that

“there may be times where using delegated powers is appropriate but that different referendums may require a different level of parliamentary scrutiny—either primary or secondary legislation.”

The committee concluded that a question that is put in a referendum that requires an order to be made under the delegated power in section 30 of the Scotland Act 1998, as well as questions about significant moral issues, should require primary legislation, and the Finance and Constitution Committee agreed with that.

We now come to the issue of who sets a question. Again, let us be honest: this is about independence. Section 3(7) excludes consideration of a question by the Electoral Commission when it has previously published a report on that question or has previously recommended the wording of the question.

The cabinet secretary was rather bullish—to put it politely—about that in committee. Somewhat bizarrely, he claimed that because we had asked one question in 2014, the same question should be set in stone, because, he said,

“it is a current question”.

He went on to say:

“I cannot see why we would suddenly decide, ‘We’d better brush this one down and have it tested again.’ It is still there. It is still being asked. It is current.”—[Official Report, Delegated Powers and Law Reform Committee, 10 September 2019; c 24.]

In effect, he wanted to cut out the Electoral Commission, but that antidemocratic ruse was seen through straight away. Mr Russell was rumbled. That led to Mr Crawford’s committee saying that the evidence was in favour of the Electoral Commission testing a previously used referendum question and that Mr Russell should come to an agreement with the commission prior to stage 2. I am pleased to hear that Mr Russell has reined back on his rhetoric.

In an intervention on Mr Rumbles, I said that the bill is being rushed through. That is my view. The Government wants to push it through before the end of the year. It is a serious bill, to which there might be a number of amendments. In my view, there simply is not time for that. If we are to put through such legislation, it needs to be done properly and not rushed.

John Mason (Glasgow Shettleston) (SNP)

I am grateful for the opportunity to take part in the debate.

I joined the Finance and Constitution Committee after the summer, shortly after it had commenced its work on the bill. Although it is quite a technical piece of legislation, it has created a lot of interest, and it deals with many factors in addition to the wording of any question.

I think that there is widespread agreement that there should be such framework legislation so that we do not need to keep reinventing the wheel every time we have a referendum. In the past, I have felt that we should move towards having more referenda on more topics, as happens in countries such as Switzerland and the United States.

We have tended to have referenda on major constitutional questions—for example, the first time that I voted was in 1975, in the European Communities referendum—but some people have believed that we should also have referenda on major moral questions, as has happened on abortion in Ireland. Potentially, we could also use them for local issues, as I think happened for the 1996 decision on Rutherglen leaving Glasgow.

However, I have to say that the 2016 referendum has made me a little more wary of this form of decision making. If a Government gets a big majority of the kind that was obtained in 1975 and 1997, I believe that a referendum can give public endorsement to politicians’ proposals, but a close or disputed referendum, such as those in 1979, 2014 and 2016, clearly does not lead to widespread acceptance and might just lead to demands for a further opportunity to vote.

Patrick Harvie

I point out that in 1997 there was also a referendum in Wales, which led to an extremely close, knife-edge result. It is the form of leadership by those on the winning side that creates a sense of being able to move on beyond a knife-edge result. That should involve reaching out and attempting to implement the result in a way that brings people together, which is where there has been a failure in relation to the 2016 referendum. There has been a sense of winner takes all.

John Mason

That is a good point, because Wales has built on what was a very close result in 1997. As someone who spent their summer holiday in Wales this summer, I think that there is a lot of agreement on the fact that Welsh devolution is supported.

Neil Findlay

Will the member take an intervention?

John Mason

Not at the moment. I want to make progress.

The issue that I mentioned raises the question of who makes decisions for a country. Should it be Parliament, as representatives of the people, or the people themselves by way of a referendum? In England, the tradition is sovereignty of the crown or Parliament, whereas in Scotland we would emphasise the sovereignty of the people.

It seems that if we are to have the people making such decisions—I agree that we should aim for that—we also have a responsibility to ensure that the public is well informed. That happened to a large extent in 2014, when the Scottish public was well informed about independence, and, almost as a by-product, about the European Union. I believe that that was one reason for the different results in 2016: the Scottish public was already well informed about the European Union, whereas it seems that in many parts of the rest of the UK, the public was not so well informed.

I move on to some of the specifics of the bill. The question whether primary or secondary legislation is required must be answered each time. Paragraph 30 of the committee report was a bit of a compromise, and I think that we would agree that, in a sense, it was a bit clumsy. Nonetheless, the result is that the committee recommends that primary legislation is always required for constitutional issues and usually required for other issues.

On political literacy, paragraphs 90 to 94 focus on young people. The suggestion seemed to be that school pupils who do modern studies generally have a good understanding of the issues, but that many other young people do not. I take the point that Jenny Gilruth made in her speech. I guess that the same might be said of the wider population, in that, clearly, some people have a better understanding of issues than others.

A linked theme appears in paragraphs 169 to 172, where we consider whether there should be public funding for either side of a campaign. I understand that such a provision has been used in Ireland, where a change to the constitution required a referendum, but there was little public interest, so the campaigns needed a funding boost. However, both the committee and I felt that that had not been the experience in Scotland, where referenda have generally been contentious and created a lot of interest. The risk is that public funding might well lead to increased public suspicion of the process.

Which expenditure needs to be reported, and the fact that staffing costs can be omitted, has always struck me as odd. One organisation that I was involved in for the 2014 campaign spent a large part of its budget on staffing, but that did not have to be reported anywhere. Another area that is not reported is that of donations and assets before an organisation is registered, which, again, strikes me as odd. Paragraphs 151 to 154 ask the Government to consider that.

Paragraphs 73 to 80 consider whether a referendum threshold should be a simple majority, a supermajority or a required percentage of the electorate or of turnout. International evidence is against requirements other than a simple majority, as they are often open to misuse and can encourage people not to vote at all. I support the committee view that we should stick to a simple majority. Having said that, our experience of 2014 and 2016 tells us that winning by 52:48 or 55:45 comes with challenges. We may need to win by at least 60:40, and possibly by 70:30, in any referendum, if the decision is to be widely accepted. For example, in 1997, the decision to have this Parliament was won by 74:26. My personal feeling is that, if possible, it is better to wait a bit longer before holding a referendum, so that we are more likely to get a strong endorsement one way or the other.

Finally, on the issue of the actual question, the committee came up with wording that asks the Scottish Government and the Electoral Commission to come to an agreement, presumably with a bit of compromise on both sides. That is not how it was portrayed in much of the media, but that is why it was a unanimous report. We did not say that it should or should not be tested again; we just called for an agreement. I welcome the Electoral Commission’s latest briefing, which says that it would welcome any constructive discussions. Personally, I do not care too much exactly what the wording of the question is.

The Deputy Presiding Officer (Linda Fabiani)

You must come to a close, please.

John Mason

Nor do I care too much about the timing. I just want us to win the next independence referendum, I want us to win it well, and I want Scotland to be free again.

Neil Bibby (West Scotland) (Lab)

The Finance and Constitution Committee has produced a balanced and fair analysis of the bill and issued a set of reasonable recommendations. It is now for the Parliament to decide whether the bill is desirable.

I agree with Bruce Crawford that we should aim for consensus in our politics. However, as we have seen over the past few years, presenting a binary choice as the solution to complex problems can cause real difficulty in a modern parliamentary democracy. It can feed a political reductionism that polarises and drives people apart, instead of establishing consensus around a solution.

I have no hesitation in saying that I support a final say referendum on the issue of Brexit. However, I only support a confirmatory EU referendum because it is a vehicle to confront the problems created by the last one.

A referendum is a relatively rare part of the democratic process, especially in this country. Referendums have a role, but as I have said, we must learn the lessons of recent times and consider the fractious politics that referendums have created. Enhancing and reinvigorating the political process in a parliamentary democracy and giving people a real say over their future is about so much more than a single event. It can be about electoral reform of the House of Commons and replacing the unelected House of Lords to make our representative democracy more representative, or an end to the creeping centralisation that undermines and marginalises local government.

As others have said, committee witnesses recognised that there is a place for a generic framework governing referendums. However, in key areas—particularly question testing—the committee found no support for the Government whatsoever. The testing of referendum questions by the independent Electoral Commission should be automatic in every case as a matter of principle. If that does not happen, it will undermine public confidence and the legitimacy of any potential referendum process. The Electoral Commission provides objectivity and impartiality. It should be the safeguard that gives the public reassurance that elections and referendums are fair and properly conducted and that the results can be trusted.

Professor Fisher, Professor Chris Carman, Dr Renwick, Dr Andrew Mycock and Dr Toby James all supported the testing of any question. The cabinet secretary argued that because the Electoral Commission once approved the wording of a particular question in a particular referendum, the same question should be used for evermore, and that the Electoral Commission’s testing is somehow irrelevant in that case. I am pleased that the cabinet secretary is moving away from that position today.

Dr Alan Renwick said that lack of testing would be “a retrograde step”. Dr Andrew Mycock said that testing is

“appropriate for every referendum—if it is repeating an issue or if the material circumstances have changed—to go through that process”.—[Official Report, Finance and Constitution Committee, 11 September 2019; c 30.]

The Scottish Government tells us that it supports a second independence referendum now precisely because material circumstances have changed. The Government cannot have it both ways.

The Scottish Government tells us that the bill is about any referendum that the Parliament wants to put to the people. Let us not kid ourselves. There is only one referendum that the SNP wants us to agree to and it is the second independence referendum, which the bill in its current form does not cover and cannot cover without a section 30 agreement. In the same way that David Cameron called a Brexit referendum to deal with divisions in the Tory party, Nicola Sturgeon is using the bill to keep the nationalist grass roots happy.

For the record, I do not support a second independence referendum. The Labour Party voted against a second independence referendum in the Parliament and, as Richard Leonard has made clear, we will do so again, if necessary. However, whether the bill is about independence or not, it is flawed.

Throughout the committee scrutiny, witnesses raised concerns about how any future referendum would be scrutinised. The use of regulations would minimise public participation and weaken the ability of the Parliament to interrogate issues and hold ministers to account. In his evidence, Dr Renwick said:

“A decision to hold a referendum is a major decision, so it should be subject to the greatest level of scrutiny in the representative system.”—[Official Report, Finance and Constitution Committee, 4 September 2019; c 11.]

Using regulations instead of primary legislation, as proposed, weakens scrutiny. The committee heard from no one outside the Scottish Government who was prepared to justify that use of regulations. The nearest that anyone came to offering support was the Law Society of Scotland, which said that scrutiny should

“take the form of an act or, at the very least, a Scottish statutory instrument that is subject to the super-affirmative procedure, but that would be a very sub-optimal position.”—[Official Report, Finance and Constitution Committee, 4 September 2019; c 32.]

When it comes to a referendum, I believe that primary legislation should be used in all cases.

There are other areas that need to be addressed, such as imprints on digital campaign material, the Electoral Commission’s powers to obtain information and better reporting of campaign spending and assets. Patrick Harvie made a number of good points on that.

As Alex Rowley said, the people of Scotland and the people of the UK have not been well served by years of constant constitutional wrangling. They are fed up with it. They are tired of the UK Parliament being consumed with debates about nothing but Brexit. They are tired of the Scottish Parliament’s—and specifically the SNP Government’s—obsession with independence.

Today is a perfect example of why we should be debating other issues. As Neil Findlay said, the bill does nothing to improve people’s lives. Education standards are falling, the national health service faces a workforce crisis and local services are suffering from chronic underfunding. It is time for the Government to get back to what really matters.

Brexit is a big mistake. It is a warning about the profound challenges, costs and complexities of breaking up institutions that are so fundamental to how we are governed. Scotland should avoid making the same mistake by leaving the UK. Independence is not an alternative to Brexit—it is an equivalent and one that would be even worse for the Scottish economy.

The concept of a generic framework for referendums may be sound, but what this is really about is one referendum and one referendum only. There are fundamental flaws in the bill. We will not support another independence referendum, we will not support a rigged process and we do not believe that the Referendums (Scotland) Bill should proceed.

Colin Beattie (Midlothian North and Musselburgh) (SNP)

I am pleased to have the opportunity to speak in this debate on the Referendums (Scotland) Bill. First, I emphasise that the bill is not focused simply on holding another independence referendum, although I am well aware that some members may focus solely on that aspect. The bill would allow for a strong framework for future referendums of any nature in Scotland. While it would provide us with the power to allow referendums to be held, it would also give us a chance to format rules, questions and legislation that are strong and well intentioned and which would hold our Parliament to account.

We have an opportunity to put in place a robust structure that would provide the people of Scotland with a high standard for future referenda. We could avoid the catastrophic shambles of having a distorted and divisive referendum of a similar nature to the Brexit referendum, which has done little except to leave voters disengaged and disillusioned by the misinformation that was fed to them as a means to an end. The provisions in the bill for campaign rules, which are particularly prominent, would ensure that campaigns were both fair and transparent. We do not want any more campaigns in which incorrect information about the NHS is plastered on the side of buses by self-seeking politicians.

Neil Findlay

The member is absolutely right about mistruths being told about the NHS. Does he remember what was said in the independence referendum? It was said that if we did not vote yes, Scotland’s NHS would be privatised.

Colin Beattie

To be honest, that has no relevance to what I am talking about in relation to the bill.

We need to re-engage the public with truthful, honest and fair politics, and enacting a bill that ensures that we will have comprehensive processes and open debate is a positive first step in making politics once more accessible and open.

The Brexit advisory referendum—yes, it was only advisory—clearly sets a precedent that we need to consider seriously when we set our own framework for referenda. Serious consideration has to be given to how an advisory referendum became the “settled will” of the people of all of the United Kingdom. In fact, of course, it did not reflect the views or wishes of the people of Scotland, and that has created a new impetus for the need to hold within the Scottish Parliament the appropriate powers for any future referenda.

The residents of Scotland have a fundamentally different opinion on Brexit, but they are being forced to submit to an alternative reality, although it is against their values and democratically expressed wishes. All that has come about as a result of an advisory referendum, not a legally binding one. Surely the fact that the clear majority view of the Scottish people can so easily be disregarded is a cause for grave concern. Throughout the entire Brexit process, Scotland has been treated with contempt by Westminster. We voted overwhelmingly to stay in the EU, and we have been ignored. Not only that, but our Parliament has been prevented from protecting the interests of the Scottish people. We must not disempower our people by denying them the ability to make their own decisions on such life-changing matters; that is why it is so important that we support the bill.

As we are all aware, the franchise was extended to include 16 and 17-year-olds for the independence referendum in 2014, and then for all following Scottish elections. The fact that those young people were denied a vote in the EU referendum in 2016 has left their voices unheard and has denied them access to democracy. In Scotland, various studies have concluded that 16 and 17-year-olds are perfectly capable of engagement and making informed decisions. Through the referendum bill, they would have a guarantee that they will not be excluded from the decision making that is vital to their futures, as they were in 2016.

Similarly, we need to secure the right for EU citizens to have the ability to exercise their democratic right. During the 2016 EU referendum, many of their experiences were very unsatisfactory. We need to ensure that their rights are protected and we need to make them feel welcome. We need to have provisions in place to guarantee that the mess that took place in 2016 is not replicated, and I do not think that we can trust Westminster to protect the rights of EU citizens.

A hallmark of the Scottish Parliament is that the structure of this establishment promotes and encourages cross-party collaboration. Rather than having a Parliament that is divided and paralysed by our differences in opinion, we can generally find areas on which we can agree or find common ground. It is difficult to deny that we are operating with fundamentally different values from those that Westminster is exhibiting. The bill will give us the power to draw on our abilities to work together across parties, to scrutinise, debate and approve rules and procedures for future Scottish referenda.

When we already know that the Scottish people emphatically do not want Brexit, we cannot simply wait to see what fate the UK Government decides to impose on us. We are all aware that, even in a best-case scenario, the people of this nation will be worse off. Morally, we have a duty to our people to ensure that we have some influence over that outcome, even if the Westminster regime seeks to thwart that democratic duty. As a result, there is just cause for Scotland to have the power to ensure that our country has a say over huge constitutional and economic changes, such as Brexit, and that Scotland’s views are heard and respected, especially when people overwhelmingly tell us that they do not want something. We have an opportunity to ensure that the people of Scotland are presented with referenda that are built on a proper framework, which is well considered, carefully constructed and has legal standing.

This debate is not about whether members want a second referendum on independence or Brexit. It is about whether they believe that the people of Scotland deserve the right to something better than the desperate aftermath of Brexit, which will be brought about as a result of deceit and flimsy legislative chicanery. It is about whether members believe that the people have the right for their decision to be respected. It has been a long time since the UK comprehensively reviewed the framework governing referenda. It is more than reasonable for our Parliament to seek higher standards on such an important issue. The bill has been welcomed by the Electoral Commission, the Electoral Management Board, the Faculty of Advocates and the Institute for Government. It is common sense that all of us in this Parliament should welcome it, too. The people of Scotland, whom we serve, deserve no less.

Donald Cameron (Highlands and Islands) (Con)

Usually, I welcome the opportunity to speak in this chamber, especially on legislation and matters that will have a meaningful impact on the lives of the people whom we serve, as Colin Beattie said. Unfortunately, I cannot do that today, because the bill does not address those concerns. Yet again, as I have done so often in this chamber since 2016, I find myself talking about the constitution. These issues are not unimportant, but when it comes to the Parliament’s priorities we do a huge disservice to the people whom we represent by debating bills such as this at the current time.

Neil Findlay was right. How many of us have had constituents who have come to surgeries, or people with casework, who have demanded a referendums bill forthwith? Precious few, if any. We should, of course, be debating health, justice or the environment. Yesterday, we heard how few debates there have been on education in Government time. When the First Minister states, in this chamber and in her recent party conference speech, that her top priorities are the education system and the NHS, but we spend valuable parliamentary time talking—yet again—about the constitution, how can we believe her?

Michael Russell

I respect Donald Cameron’s point of view, but I disagree with it. If what he says is true, how much truer would it be for an entire election campaign to be predicated on the Prime Minister’s “get Brexit done” slogan, and, because of Brexit, for no significant legislation to be passed in the previous three years at Westminster? If he believes that debating this bill is a problem, does he not see that the Brexit situation is also a major problem and that it is a Tory problem?

Donald Cameron

Coming from a Government that spent the first 18 months of this parliamentary session debating Brexit, that is a bit rich.

In principle, a bill covering referendum legislation might be appropriate. However, it is clear to us on the Conservative benches that this bill is simply a vehicle for the Government to hold a second independence referendum and, for its own purposes, to frame it in the most favourable means possible. Even Mr Russell admitted that to the Finance and Constitution Committee, when he said:

“We have never hidden the fact that I see this bill being used by the Parliament and the Government to create the referendum for independence.”—[Official Report, Finance and Constitution Committee, 25 September 2019; c 4.]

However, putting that fact to one side, it is clear from today’s debate that, if the bill is to pass, many issues will need to be addressed at stage 2.

We see the bill for what it is and we will not vote for it today. However, if it passes stage 1, we will work where we can to make sure that the bill puts power in the hands of Parliament and not ministers.

The Law Society of Scotland said that

“we were concerned that the Bill will have the effect of reducing the time for Parliamentary or public scrutiny of a future proposal for a referendum”

and that

“as currently drafted there is no requirement for Parliamentary or public consultation and draft regulations would not be amendable or be subject to the level of scrutiny and accountability which should be applied to important or constitutional questions.”

That is an understated but breathtaking criticism of the bill from a respected organisation, which further reinforces the impression that the Government is attempting to bypass Parliament.

I looked in vain for a provision in the bill that states that the Government will respect the result of referendums. There was no sign of that in the bill. I wonder why? The ultimate irony is that the Government is putting through legislation on referendums, when it has ignored the results of two referendums held in this country in the past five years.

There are other concerns with the bill, about which I will go into detail; they have also been touched on by other members. I commend the Finance and Constitution Committee and its convener, Bruce Crawford, for the committee report and for his typically measured speech. As members have noted, the bill is faulty. The Institute for Government said that, as it stands, the bill would

“undermine the legitimacy of any referendum.”

That is a damning indictment. Specifically, the institute noted that the lack of a requirement for the Electoral Commission to test a previously used referendum question is one of many reasons why the bill could have that effect. The bill diverges from precedent on that, because in every UK referendum since the creation of the Electoral Commission, it has tested the proposed question to ensure that it is comprehensible to voters and will not bias the outcome.

The Finance and Constitution Committee report states that

“the International Institute for Democracy and Electoral Assistance use the Electoral Commission’s process for question testing as an example of good practice”

and that

“the Independent Commission on Referendums, through the role of the Electoral Commission, has one of the most rigorous processes for assessing referendum questions.”

My question to the cabinet secretary, in all sincerity, is this: what is he so fearful of? The Electoral Commission is an independent organisation that will test the question. It gives me and my Conservative colleagues significant cause for concern over why that provision exists in the bill in the first place. We feel that the bill must be rectified to ensure that there is no partisan bias in setting such a question.

Like others, I am also concerned about the extensive powers that the bill affords to ministers and its attempt to reduce Parliament’s role in scrutinising future referenda. The point has been made forcibly by others, but the question of primary legislation is incredibly important. The bill states that actions to set referendums should be carried out by secondary legislation. The Finance and Constitution Committee report quotes the cabinet secretary attempting to justify that by arguing that

“we should not see all referenda as the same”.

How can that be accepted? I do not accept it and nor, it appears, did the Finance and Constitution Committee, which states that, in terms of constitutional issues, referendums must require primary legislation and that all other referendums will ordinarily require primary legislation.

It is clear to Conservative members that the bill is simply an attempt by the Government to initiate a referendum on independence. It is a clear attempt to ram that through with no oversight or scrutiny and to give ministers the means to mould the question in the way that best suits their desired outcome. We will play no part in that today and I urge others to do likewise.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

I will pick up on what were almost the last words that we heard from Donald Cameron about there being no oversight or scrutiny of secondary legislation. That is unmitigated tosh, if such a word is allowed to be used in the chamber. That can be illustrated by the current activities of the Environment, Climate Change and Land Reform Committee in looking at the deposit return scheme, which is being introduced by secondary legislation. The committee and Parliament have decided that there will be an extended period of consideration and the committee will produce a report. There will therefore be evidence. That is exactly the process that we would have in scrutiny terms—

Mike Rumbles

What tosh!

Stewart Stevenson

I say to Mr Rumbles that that is exactly the process that we would have for scrutiny of primary legislation.

Adam Tomkins

Will the member take an intervention?

Stewart Stevenson

Adam Tomkins refused me three times. I ask him to please sit down.

I readily acknowledge that there is a difference between primary and secondary legislation in terms of accepting and rejecting it, but that is a decision-making difference, not a scrutiny difference. Members should take account of that. In that regard, I was very surprised by Adam Tomkins’s opening remarks when he said that Parliament could not debate secondary legislation. Someone of his experience and educational background should know better. Of course, I have been involved in politics a lot longer than him. In fact, I participated in three parliamentary elections before he was born.

I will now draw on some of that experience to consider the detail of what is before us, as this debate is about the detail of the bill.

On the functions of chief counting officer and other counting officers under section 9(4), I suggest to Mr Russell and the Government that it would be useful if we also gave the number of ballot papers that were issued. That is something that political parties know, but the public do not. We might have a wee think about that.

Turning to section 10(3)(d), which identifies

“a person providing goods or services to the counting officer,”

I think that we might also consider whether we should include a person providing services to someone who wishes to vote. If public transport failure means that someone cannot get to the polling station, that would be of a similar character. We should look at those provisions.

Section 13, on campaign rules, is about

“the conduct of campaigning”

and

“restricting the publication of certain material”.

We need to be careful to consider what rules might apply to those who are not directly involved in a referendum but who might be seeking to influence its outcome. I am thinking about newspapers and newspaper articles.

Section 16 is about the destruction, concealment or alteration of documents. I relate that to paragraph 38(1) of schedule 2, under which the ballot papers must be retained for a year. However, there is no such provision in relation to the materials that a campaigner might have, saying how long those materials should be retained for. One of the problems with previous referendums has been that the campaigns fold up and disappear quite rapidly after the result is declared. There is a case for saying that the materials that they produce should be retained for a specified time. I will not say how long but, if it is a year for the ballot papers, that gives us an insight.

On section 20, on the attendance of the Electoral Commission at proceedings, and sections 21 and 22, there is no direct provision for the attendance of international observers at referendums. We would generally accept that that is part of good practice. I am not saying that the bill as introduced prohibits that from being provided for; there are ways in which that can be done, at section 20(4)(c), which specifies

“a person appointed by the Electoral Commission for the purposes of this section.”

However, that kind of conflicts with paragraph 15(2) of schedule 2, under which the presiding officers also have power—and they are the people in the polling stations. Indeed, I turn now to some of the powers that they have under the bill—some of which are slightly odd. The presiding officers may decide who is admitted to a polling station, without restriction. That seems a very broad thing, and different decisions could be made in different polling stations. That is unhelpful for the integrity of any vote, whether on a referendum or on another subject.

On the casting of votes, proposed legislation of this kind might sensibly at least make provision for the future bringing forward, by secondary legislation—being a subject that we could debate—of electronic voting as an additional means of voting. The bill as introduced is silent on that.

According to schedule 2:

“The hours of polling are between 7am and 10pm.”

I think that, for major events such as these, it is time to think about whether polling should take place over three days—a Thursday, Friday and Saturday. If we make big decisions, they should be made by the maximum number of people.

There is also an issue about ballot boxes. We should ensure that a minimum number of votes should go in a ballot box. I know of a ballot box that gets only four votes in it so, when it is tipped out, the secrecy of the ballot is compromised.

I will now conclude—as you are indicating that I should, Presiding Officer—by saying that there have been local authority referendums before, of which Strathclyde water and Edinburgh road charging are examples. Those are referenda—oh dear; I mean referendums—that would have benefited from a structure such as that proposed in the bill, as indeed would the 1934-35 peace referendum, which was on whether the UK should stay in the League of Nations. Even I was not around then, although some might suggest so.

Finally, I counsel my colleagues that “referenda” is not the plural of “referendum”, which is a fourth-declension noun. “Referenda” means something altogether different, and is a plural gerundive.

The Deputy Presiding Officer

Every day is a learning day.

We move to the last contributor in the open debate, who is Gil Paterson.

Gil Paterson (Clydebank and Milngavie) (SNP)

I am pleased to speak in the debate despite the fact that I am not a member of the Finance and Constitution Committee.

It is very timely that we are now debating the principles of the Referendums (Scotland) Bill, which was introduced recently. When I talk to ordinary people, it is quite clear to me that their trust in the concept of the referendum has been somewhat shaken by the Brexit controversy. I am not here to knock Brexit, which members might be in favour of or against; I want to talk about the referendum process and how that might have happened a bit differently.

Although I fear that referendums themselves have now been discredited, the EU referendum process could have been somewhat different. The fact that a non-binding question was utilised, which then became binding, led to the first breach of people’s confidence. There should not have been one question. If it was intended that matters such as whether to remain in the customs union or the single market were to be decided by vote, I feel that there should have been at least three questions for people to consider. In my view, if those had been put in place in the first instance, a wholly different picture would have emerged compared with what has happened at Westminster in the more than three years that it has taken for us to arrive at the bad place in which we now find ourselves. I also believe that the Brexit process would have been finished by this time, because the rancour and argument have not been based on whether we should leave—I think that people understood that question and made their decision—but came into play in the time after that. That has upset me.

I have looked at referendums that have been held in other places. As John Mason indicated, the referendum is a major tool in many European democracies, such as Ireland. It is used in a very positive manner to consult on a range of issues and to engage with the public—and the public do engage. At the same time, such countries give the public ownership of very difficult issues. If the political classes like us give ownership when we make important decisions, we can implement those decisions much better. That is a much more tried and trusted way to go about business and it provides one of the biggest benefits of the referendum process.

The bill illustrates another benefit—long-term planning—which we in this country do not do very well. For instance, all the parties that are represented in the Parliament agree that the national health service is very special, but we fight over it like cat and dog almost daily. We attack it, score points and talk about waiting times and ambulance shortages. I put my hand up to having done that in the past. The Opposition does it at the moment. If my party were in Opposition, guess what—we would be doing the same thing.

However, another way to deal with such matters would be to use a bill such as the one that we are debating. We could all come together over an issue such as the health service and come up with a 10-year plan to which we would all sign up. We could put that plan to the people, and ask the basic question first, which I am sure that everybody would agree with, such as, “Do you agree with a publicly funded national health service?” That would be point one. Under point two we might go on to ask, “Do you agree to pay a penny in the pound in tax, if we give a guarantee that we will spend every penny of that on the national health service?”

Therefore, it would not be a one-question approach but maybe a two or three-question approach—if we first agreed to sign up to a 10-year plan. That is what happens in most European countries; the political classes get together and fundamentally agree on something that should happen, although difficult issues might arise.

The bill is a way to implement such an approach and for us to look at doing things somewhat differently in the future. It provides a way for us to get together and take ownership of something such as the health service—which is so precious to us all and to the public—talk to the people, come up with a resolution and work to the 10-year plan. That way we would take the matter right out of politics. The health service should not be a political football that we kick all the time, because that is to the detriment of the service and the people in it.

I understand that my colleagues in the Conservative Party and elsewhere are looking at the independence referendum. I am looking well beyond that and at where we can make good use of a proper process within the bill in order to make change for the better.

The Deputy Presiding Officer

We move to the closing speeches.

Alex Rowley

In closing for Labour, I would like to reiterate why we will vote against the bill. Our reasons are twofold. First, the bill is not fit for purpose. As members across the chamber have pointed out, evidence to the committee was highly critical of a number of provisions in the bill, namely the granting of ministerial powers to hold referendums by secondary legislation, and testing of questions by the Electoral Commission. I almost used the word “referenda”, but I stand corrected by my colleague Stewart Stevenson.

Given how fundamental those flaws are, they alone would be enough for us not to support the bill, but on top of that, the entire bill has been phrased in the context of an independence referendum.

I note that when Donald Cameron talked about the First Minister’s priorities being education and health, the cabinet secretary intervened and said that three years have gone by that at Westminster have been completely wasted because the UK Government has not been able to focus on the big issues. The cabinet secretary attacked the Tories for that—rightly so—but that point, which he made, is the very point that many members are making today. Where is the demand in Scotland right now to create a referendum bill that will give us more referendums and more of the same type of problems?

A fair point that Neil Findlay tried to get across was that in parts of his constituency where there are no general practices and public services are in decline, the issue is not “Let’s have a referendum bill.” It is “Let’s fix our health service, and let’s address why our education service is going backwards and children are being denied the opportunities they should have in education.”

I also want to pick up on the point that Alexander Burnett made about a pretence that the legislation is not about independence. As I said earlier, in fairness, the SNP has been very up-front and clear; the introduction of the bill is to pave the way for an independence referendum, not at some time in the distant future, but next year.

The reality is that even the people who say that they would support independence if there was a referendum are not demanding that we have a referendum right in the middle of the absolute chaos that we are in as a result of a failed Tory—

Michael Russell

I do not think that Alex Rowley understands the central point. In order to escape from Brexit, Scotland has to able to choose its own constitutional future. That is the key. We cannot just sit and wait for it to be done for us. That might be good enough for Labour, but it is not good enough for Scotland.

Alex Rowley

Michael Russell says that an independence referendum is a way out of Brexit, but it is not. It would create more and greater chaos. Would we be in Europe or out of Europe? Would there be a hard border between Scotland and England, or not? Would we lose the biggest trading partner that we have in a free market, in the United Kingdom? It would be a recipe for even more chaos, which is why Labour cannot possibly support the bill.

I urge the SNP to take the bill back and think again. It is not in Scotland’s interests. Ultimately, it is about one referendum—Nicola Sturgeon has made it clear that it is being put in place to pave the way for an independence referendum in this session of Parliament.

Richard Lyle (Uddingston and Bellshill) (SNP)

Hear, hear!

Alex Rowley

Richard Lyle says, “Hear, hear!” but what would the proposition be? Would we have independence in Europe, with the countries of the European Union telling us what the rules will be and whether we will have a hard border with England? If so, it would not be £12 million of trade that would be at risk, but £50 million. That is the reality of the bill and that is why the SNP must think again, reject the bill and take it back. Let us start fighting for the issues that will change the lives of people in Scotland.

The Deputy Presiding Officer

The chamber has very quickly gone silent.

Murdo Fraser (Mid Scotland and Fife) (Con)

The first question to ask is what exactly the debate is about. We have heard lots of different interpretations from around the chamber. We cannot, until we answer that question, really take a view on the bill that we will be asked to vote on in a few moments.

The bill sets out the framework for holding future referendums. At the start of the debate, Adam Tomkins set out why we are right to be cynical about what exactly it seeks to achieve. Unlike in other jurisdictions, such as Switzerland, there is no particular tradition of holding referendums in this country, although I thought that Gil Paterson made a very decent case for why we should perhaps rethink that approach. In our tradition, we have tended to hold referendums when major constitutional questions have had to be put, such as on devolution in 1979, Scottish independence in 2014, or membership of the EU in 2016.

When the bill team came to the Finance and Constitution Committee and they were asked whether they had in mind any topics to put to a referendum, other than the question of Scottish independence, they were unable to come up with any suggestions.

Mike Rumbles

Does Murdo Fraser agree that the bill is clearly a partisan bill because, at decision time tonight, only members from the two nationalist parties will be voting for it?

Murdo Fraser

I think that my friend Mike Rumbles might well be right. We will see the two nationalist parties in the chamber combining, because they know what the bill is really about. It is all about independence.

As Adam Tomkins reminded us, Michael Russell told the committee:

“We have never hidden the fact that I see this bill being used by the Parliament and the Government to create the referendum for independence.”—[Official Report, Finance and Constitution Committee, 25 September; c 4.]

That has been clear in the debate. We have heard from people on different sides—Angela Constance and Alex Rowley, for example—arguing the substance of the cases for and against independence. Having that basic knowledge of what we are actually taking about with regard to the bill has to influence our approach to the legislation.

Beyond that, there are serious flaws in what is proposed. We are being asked to vote on what is simply bad law. The bill is flawed in two key areas. The first relates to the power that would be given to Scottish ministers to call referendums by means of secondary legislation, which is an approach that was slammed by witnesses. In its submission, the Institute for Government said that the bill would “undermine the legitimacy” of any referendum and that

“it is imperative that the Scottish government avoid the perception that it is seeking to avoid full scrutiny of any ... referendum proposal by intention, or as a consequence of a desire to fast-track the process.”

That view was echoed by Alan Renwick, whose views have already been quoted in the debate. He said:

“I have found no well-functioning parliamentary democracy that gives Ministers blanket authority to call a referendum by secondary legislation.”

The Faculty of Advocates and the Law Society of Scotland took similar views.

Graham Simpson, who is the convener of the Parliament’s Delegated Powers and Law Reform Committee, reminded us that his committee said that constitutional referendums should require primary legislation. That view was echoed by the Finance and Constitution Committee.

I was pleased to hear the cabinet secretary accept that a constitutional referendum would, indeed, need primary legislation. In his words, “a short bill” would be needed, but I hope that, should we ever get to that stage, there would not be an attempt to avoid detailed parliamentary scrutiny, because it sounds to me that the use of the words “a short bill” means that that would happen.

The second area in which the bill was found wanting relates to the testing of the referendum question. The Finance and Constitution Committee heard a great deal of evidence on that. The Electoral Commission was very clear in its view that it would need to test properly any question that was to be asked, even if it had been asked previously. That is because, in its view, “contexts can change”. The Scottish ministers’ ambition that a question that has been asked previously should not be retested is simply not supported by the evidence.

That is important in the context of a potential future independence referendum. In the light of experience, we now know that, in any referendum in which a yes or no question is asked, those on the yes side have an inbuilt advantage from day 1, because “yes” is a positive and affirming word, and it is easier to get people to agree to a proposition than to disagree with one. It is precisely for that reason that the 2016 referendum did not ask a yes or no question. Instead, the question was framed around “leave” or “remain”. Views on the issue have changed since 2014, and it is for that reason that the role of the Electoral Commission in determining any question that is asked is vital.

Bruce Crawford

I am speaking as the convener of the Finance and Constitution Committee, so I will make this a question about fact. Does Murdo Fraser think that the Electoral Commission got it wrong for the 2014 referendum?

Murdo Fraser

Time has moved on. We are five years on from 2014, and we have more experience of referendums and the testing of questions. In 2016, the Electoral Commission did not agree to a yes or no question.

The bill is an attempt by the SNP Government to gerrymander any future independence referendum and to rig its terms so that it is as favourable to the SNP’s cause as possible. That is simply not acceptable. It should not be acceptable to Parliament, and it is not acceptable to anyone who takes an objective view on how referendums should be run.

I will deal briefly with one other matter—the question of thresholds. I listened with great interest to John Mason’s case for referendum thresholds being higher than 50 per cent plus one, which has been the historical trend. I have often heard the case being made that it is bizarre that, when people want to change the constitution of a voluntary society or a golf club, a two-thirds majority is required, but we can change a country’s constitution simply on a majority of 50 per cent plus one. I can see the attractions of that argument, but there is no precedent for a threshold of more than 50 per cent plus one being used. I do not think that we should rule out creating a different threshold, but that might simply create more problems than it solves.

Stewart Stevenson

Will the member take an intervention?

The Deputy Presiding Officer

Mr Fraser is just closing.

Murdo Fraser

Although the bill might appear to be about referendums in general, we know that, in practice, it is about just one issue: independence. Even in that respect, the bill is fundamentally flawed. It seeks to give substantial powers to Scottish ministers to bypass Parliament and to grab power for themselves. In particular, it would give them the power to set the question in any referendum without proper scrutiny. That is unacceptable to the Scottish Conservatives, and should be unacceptable to Parliament.

We do not want another independence referendum and we do not believe that the public want another referendum. However, even if we did want one, the bill is not a suitable vehicle to take a referendum forward. For the reasons that I have given, Parliament should reject it at decision time.

Michael Russell

What an unusual debate this has been! Let us stand back for a moment and consider what has been taking place this afternoon. Parliament has been debating a Finance and Constitution Committee report, which I have already strongly welcomed, along with the work of the Delegated Powers and Law Reform Committee, which also contributed to it. The report unanimously approved the policy objectives of the bill, but in the debate two of the four parties that are represented on the Finance and Constitution Committee have denounced the bill and said that they can have nothing to do with it. It was, indeed, denounced in ringing terms by the Tory spokesperson who is the deputy convener of that committee.

Moreover, that has happened in circumstances in which I made it clear in my opening statement that I accepted virtually all the recommendations that the committee made, including the most contentious one. I have said that I will do exactly what the committee has asked me to, which is to seek agreement with the Electoral Commission.

What an extraordinary afternoon! What it proves is that the issue is not about the bill—that is absolutely clear. [Interruption.] I was about to quote Professor Tomkins on that point, but I think that his laughter does it. Mr Tomkins said that it was not about the bill and he was absolutely correct. It is about the fact that some parties in this Parliament have contempt for the democratic views of the Scottish people and will never allow them to be heard. Let me prove that.

Mike Rumbles

Will the member take an intervention?

Michael Russell

No, I will not; I have a lot to get through and I took an intervention from Mr Rumbles earlier. A lot of good that did me, so I am not bothering again.

Let me prove my point by reference to two Tory speeches this afternoon. Mr Burnett made a speech that was an absolute tear jerker. It was an extraordinary defence of the Electoral Commission, which needed to be protected and respected in everything that it did, although I had indicated in my opening speech that I accepted all its recommendations. While Mr Burnett said that the Electoral Commission had to be protected and respected from even minor disagreement, there was sage nodding of heads on the Tory benches, indicating that that was absolutely correct and that Mr Burnett was, of course, speaking sense on behalf of every Tory—except that that is not true about the Tory party.

The following are the words of Alan Mabbutt. You may ask: who is Alan Mabbutt? He is the director general of the Conservative Party. He gave evidence to the House of Commons Public Administration and Constitutional Affairs Committee in June and—I am paraphrasing from a news report—he said that he did not support strengthening the Electoral Commission. He went on to heavily criticise its performance, he attacked it for handing out unfair fines and he said that it had taken the wrong tone with the parties and given “deficient” advice on electoral law.

Therefore, I am afraid that Mr Burnett’s view is not shared by the Conservative Party. I doubt whether it is even shared by Mr Burnett. It is an excuse to attack the SNP. It was nothing to do with the Electoral Commission. It was crocodile tears from Mr Burnett.

There was an even more dramatic moment with Mr Tomkins earlier. I heard Mr Tomkins telling the chamber in passionate tones that he is a strong defender of democracy—that he is the democrat here and that it is the SNP that is outrageously defeating democracy. At the same time, Libby Brooks, the correspondent for The Guardian who was covering Boris Johnson’s visit, was tweeting this:

“Boris Johnson tells reporters in Moray that he will not grant the powers for a second independence ref regardless of whether the SNP wins majority of seats in this election OR wins a pro-independence Holyrood majority in 2021”.

How is that for democracy? It does not matter how the people of Scotland vote; we will just ignore them.

Both things illustrate the truth of the Tory contribution to this debate. It is entirely, completely and utterly bogus, as is the attack on the question of the question. The question in the 2014 referendum is in current use. It has been used in more than 50 opinion polls, and it is clearly supported. In an opinion poll, 77 per cent of people said that they believed that it should be used again. Only 10 per cent take the Burnett and Tomkins view. That attack is therefore completely bogus.

Let me give the last bit of evidence that proves that. The person who summed up for the Tories tweeted:

“Leave/Remain and a Two-thirds majority required. Bring it on”.

That was his view of the question. That was what he wanted the question to be. I am afraid that the Tory position is threadbare and bogus; it is full of sound and fury and it signifies absolutely nothing at all. The Tories are against the Scottish people having their say, and they will use any excuse to push that issue.

The other speech that I want to mention is Neil Findlay’s. I find it astonishing that Neil Findlay cannot make the clear, direct and inevitable connection between a political system that allows a Tory Government to destroy the interests of Scotland and the poorest people of Scotland and to impose poverty and austerity, and the matter of the constitution. Why cannot he make that connection? If he made it, he would have to accept that the constitutional choice that the Labour Party has made has caused rather than alleviated the poverty of Scotland.

Neil Findlay rose—

Michael Russell

No, I am not taking an intervention from Mr Findlay. I have heard quite enough of him this afternoon. Unlike my view of the Tories, I do not believe that Mr Findlay’s point is bogus, but I believe that he is blinkered.

Let me now deal with one or two of the substantive points on the bill. On the issue of the primary and secondary legislation split, I carefully explained to both committees to which I gave evidence what the bill is. It was constructed in a way that put all the detailed arrangements for a referendum into one bill and ensured that the small number of things that would change in individual referenda would be dealt with in a separate process. That was entirely clear. If the committee does not want to have the process as it is, I am happy to say that we will have primary legislation. I said that at the opening of my speech. If that is really one of the key reasons why Labour could not give its support, it can give its support now. I have made that clear.

Daniel Johnson (Edinburgh Southern) (Lab)

Will the cabinet secretary give way?

Michael Russell

No. I am sorry, but I am not taking interventions, as I have a lot to get through. There has been a long debate, and Mr Johnson has not been here for it.

Throughout the whole process, I have been agreeable to change. If Labour was genuine about those changes, it should support the bill.

On section 37, which has been objected to, it has been recommended that electoral legislation be dynamic. That means that we can continue to change as circumstances change. Electoral administrators will tell us that that is required, and we should support that.

I started by saying that this is an unusual debate. This is also an unusual Parliament. That has been shown this afternoon. In a normal national Parliament, we would expect enthusiasm for enabling our voters to have their say. [Interruption.] I do not think that any Liberal Democrat should talk about trust. In a normal national Parliament, we would expect keenness to have a debate about how we enhance democracy, and there would be an acceptance that each and every member of that Parliament would vote for a democratic choice on the nation’s future. This debate has proved to me yet again that, because this is not yet a normal national Parliament, we should continue with the process of ensuring that we have a normal nation—and that is an independent nation.

I commend the bill.

The Presiding Officer (Ken Macintosh)

The next item of business is consideration of motion S5M-195399, in the name of Derek Mackay, on a financial resolution for the Referendums (Scotland) Bill.

Motion moved,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Referendums (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.—[Derek Mackay]

The Presiding Officer (Ken Macintosh)

There are two questions to be put as a result of today’s business.

The first question is, that motion S5M-19743, in the name of Michael Russell, on stage 1 of the Referendums (Scotland) Bill, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Griffin, Mark (Central Scotland) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Sarwar, Anas (Glasgow) (Lab)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

The Presiding Officer

The result of the division is: For 65, Against 55, Abstentions 0.

Motion agreed to,

That the Parliament agrees to the general principles of the Referendums (Scotland) Bill.

The Presiding Officer

The second question is, that motion S5M-19539, in the name of Derek Mackay, on a financial resolution for the Referendums (Scotland) Bill, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Griffin, Mark (Central Scotland) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Sarwar, Anas (Glasgow) (Lab)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

The Presiding Officer

The result of the division is: For 65, Against 55, Abstentions 0.

Motion agreed to,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Referendums (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.

The Convener (Bruce Crawford)

Good morning and welcome to the 27th meeting in 2019 of the Finance and Constitution Committee. I remind members to switch off their mobiles, or at least to put them on silent, so that they do not disturb the proceedings.

Agenda item 1, which is the only business on today’s agenda, is to deal with stage 2 of the Referendums (Scotland) Bill. I welcome to the meeting Michael Russell, the Cabinet Secretary for Government Business and Constitutional Relations, and his officials. I also welcome non-members of the committee to the meeting.

Members will be aware that we have a considerable number of groupings to consider and amendments to get through. I am mindful of the need to ensure that there is sufficient time to allow consideration of all the amendments, including those in the later groupings. Therefore, I ask members and the cabinet secretary to keep their contributions as concise as possible.

Section 1—Power to provide for referendums

The Convener

Amendment 76, in the name of Adam Tomkins, is grouped with amendments 77, 1 to 3, 78, 18, 23, 29, 42, 49 and 61.

Adam Tomkins (Glasgow) (Con)

Good morning, everyone. The first group of amendments concerns the power in section 1 of the bill to provide for referendums. Section 1 as drafted is extraordinary, because it allows for referendums to be called either by the authority of an act of this Parliament, which would be by primary legislation, or by ministerial order or regulation, which would be by secondary legislation.

There is no equivalent power in the Political Parties, Elections and Referendums Act 2000, which is the United Kingdom’s referendums legislation. The stage 1 evidence that the committee took from Dr Alan Renwick of the constitution unit at University College London was that there is no well-functioning parliamentary democracy that gives ministers blanket authority to call a referendum by secondary legislation.

The committee unanimously recommended that section 1 be amended so that at least constitutional referendums must require primary legislation and that all other referendums ordinarily require primary legislation.

I will speak not only to amendment 76, which is the lead amendment in this group, but principally to amendment 1.

Amendment 1 omits section 1 from the bill, replacing it with a provision that would mean that any referendum to which this legislation applies would need to be triggered by an act of the Scottish Parliament. I note that the cabinet secretary now supports that amendment, which I very much welcome.

Amendment 1 would mean that the bill would be identical to the equivalent UK legislation, PPERA, in that any referendum held on a devolved matter in Scotland to which this legislation applies would require an act of the Scottish Parliament to establish it. That is the clearest and simplest solution to the problem that section 1 as introduced poses. As I said, I very much welcome the Scottish Government’s apparent support for it.

Amendments 76 and 77 are alternatives to amendment 1, in the event that the committee does not accept amendment 1.

Amendment 76 would mean that any referendum on a constitutional matter would require an act of the Scottish Parliament. Amendment 77 would mean that any referendum on a moral issue would also require an act of the Scottish Parliament. In other words, no constitutional referendum and no referendum on a moral issue could be called by ministerial order or regulation.

I do not intend to move those amendments, if committee members indicate that amendment 1 is likely to be accepted. Amendments 76 and 77 are lesser alternatives to amendment 1, and are not designed to be moved in addition to amendment 1 if that amendment is agreed to.

I briefly turn to the other amendments in the group, which are all consequential on amendment 1. Amendments 2 and 3 are rival amendments to section 2. The cabinet secretary proposes to leave out section 2 entirely. I think that the understanding—he will be able to speak for himself in a moment, so he will correct me if I am wrong—is that section 2 becomes unnecessary or otiose if amendment 1 is accepted. I would happily support amendment 3.

My amendment to section 2 simply omits from it the provision that would enable regulations under the provision to modify any enactment. The committee took evidence from the Law Society of Scotland that that aspect of section 2 as introduced is too broad and gives ministers too much power to amend primary legislation by secondary legislation, which is always something that we should be alive to. Again, however, I will not move amendment 2 if it is clear that the cabinet secretary will move amendment 3 and the committee will support it. I prefer amendment 3, which leaves out the entirety of section 2, to amendment 2, which leaves out only three words of it.

As I said, all the other amendments in the group are consequential on amendment 1. Except for amendment 78, which is in my name, they are all in the name of the cabinet secretary. We will support his amendments. Amendment 78 is on one further aspect of the bill that requires to be amended in the event that the ministerial power to trigger referendums by regulations is removed from section 1. It simply omits the words “(including this Act)” from section 3(1)(a). That means that the provisions in section 3 on referendum questions would apply where

“provision is made by or under an Act of the Scottish Parliament for the holding of a referendum”.

We do not need the words “(including this Act)” in that sentence, because no referendum is to be held under this legislation. The bill does not contain provision for the holding of any referendums, so those words are not needed. The section would be neater, cleaner and more accurate if we were simply to omit those words; that is the force of amendment 78.

I repeat that we would be happy to support all the other amendments in this group in the name of the cabinet secretary.

I move amendment 76.

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

It is always my approach to a bill—members of the committee know this, because we have been in this position before—to seek to enhance it and to reach agreement on issues that have been raised in the committee report. That has lain behind all the approaches that I have taken to amendments today, as I hope will become clear.

I hope that, at the end of stage 2, we can have a clear agreement on the bill and—irrespective of whether people want to support or oppose it—it is clear that we have sorted out the issues that have been raised at stage 1.

I still believe that this bill offers a different approach to arranging referendums, and elements of it will survive this process. It provides a framework on to which the specific arrangements for referenda would be bolted, which is different from the PPERA approach.

Some committee members prefer the PPERA approach, so I am trying to find a way to ensure that the objections that were raised at stage 1, in evidence and by the committee, can be addressed. That is the background to where I find myself this morning.

The committee heard evidence on whether referendums should be triggered by primary or secondary legislation and on the circumstances under which those approaches would be appropriate. Your stage 1 report recommended

“that the Bill be amended so that referendums on constitutional issues must require primary legislation and that all other referendums will ordinarily require primary legislation.”

It further recommended that, if the Government wished

“to identify specific criteria for other referendums”,

we should provide for that.

As I set out in the stage 1 debate, I have accepted the argument that most referendums should be triggered by primary legislation. I have gone on to consider whether there are circumstances in which a referendum could be provided for by secondary legislation, subject to some form of super-affirmative procedure. I provided evidence to the committee when I spoke to and was questioned by it on these matters. Those circumstances apply in New Zealand, for example. Having taken account of the evidence and of the view of the committee, however, I have come to the conclusion that it would be best not to stand upon that issue, and to find a way to address the objections of the committee.

Adam Tomkins has lodged amendment 1, which would produce the effect of ensuring that all referendums are undertaken by primary legislation. I intended to lodge my own amendment to make the same change, but I was slightly tardy in that matter, so I have put my name to Mr Tomkins’s amendment, I support it and I would encourage the committee to support it.

Mr Tomkins has indicated that amendments 76 and 77 are alternatives to that approach. As I have accepted amendment 1, which is a better approach, I do not think that there is any need to proceed with amendments 76 and 77, and I am grateful to Mr Tomkins for having made that clear in what he has said. Those two amendments do not address the recommendation of the Delegated Powers and Law Reform Committee that the procedure for secondary legislation should be adjusted, so I think that we should simply park those and accept that amendment 1 represents the right way to do things.

I have lodged consequential amendments 23, 29, 42, 49 and 61, which make the necessary consequential adjustments to the bill to accommodate the changes to section 1. Those amendments would essentially provide the full job, if added to section 1.

Mr Tomkins referred to amendment 78 as a change to section 3 as a consequence of amendment 1. I support that amendment and encourage committee members to do so. In addition, Mr Tomkins lodged amendment 2 to make changes to section 2, removing the power to amend enactments. I have been more radical than Mr Tomkins in this matter: amendment 3 in my name would remove section 2 altogether. If section 1 provides for a bill in all cases, any necessary adjustments to the provisions in the framework could be made in a subsequent bill, as is common. That is a more straightforward approach than would apply under section 2.

Amendment 18 removes what would be a superfluous reference to section 2 if amendment 3 is accepted.

Patrick Harvie (Glasgow) (Green)

We have debated the question of whether specific legislation should always be required for referendums in the future, and I was willing, with an open mind, to allow the cabinet secretary to come back to us if he wanted to set out criteria that would allow for secondary legislation to be adequate. I was never really convinced that the need was there.

It seems to me that we could have a referendum on an issue that was so big that it transcended the parliamentary process, or on so contentious an issue that it would not be appropriate for Parliament to deal with it. It has always struck me as difficult to envisage a situation where an issue would meet those tests and yet be so simple that it did not require the detailed scrutiny that full legislation would offer.

I am glad that a compromise or agreement has been reached and that the cabinet secretary has agreed that the change can be made. Even if that was not the case, I would not be agreeing to amendments 76 or 77 from Adam Tomkins, if they were moved. If a minor matter was constitutional, I would not see that as being particularly key to the test of whether primary legislation was necessary.

As for moral issues, as we have discussed at the committee previously, I do not see it as being easily possible to have a clear definition of what constitutes a “moral issue”. All too often in politics, we regard things as moral issues when they affect marginalised people, rather than examining the moral content of the arguments.

Women’s reproductive rights are often seen as moral issues; men’s reproductive rights never are. Family law for people in same-sex relationships is often seen as a moral issue; family law for people in mixed-sex relationships never is. I will not agree to amendment 77 on a point of principle; legislation that would separate out what are seen as moral issues in politics from what are not seen as moral issues would be a fundamental mistake.

Adam Tomkins

I welcome the cabinet secretary’s support for amendment 1. In light of that, and in the expectation that the committee will vote for amendment 1, I will seek to withdraw amendment 76.

Amendment 76, by agreement, withdrawn.

Amendment 77 not moved.

Amendment 1 moved—[Adam Tomkins]—and agreed to.

Section 1, as amended, agreed to.

Section 2—Application of this Act

Amendment 2 not moved.

Amendment 3 moved—[Michael Russell]—and agreed to.

Section 3—Referendum questions

Amendment 78 moved—[Adam Tomkins]—and agreed to.

The Convener

Amendment 79, in the name of Adam Tomkins, is grouped with amendments 90 to 92.

Adam Tomkins

The second fairly significant area of contention that is generated by the bill is to do with the Electoral Commission’s role in testing the intelligibility of questions, in particular the provision in section 3(7), which bypasses that function of the Electoral Commission for what are, in essence, repeat referendums.

The committee took strong evidence on the matter at stage 1, including from the Electoral Commission, which said:

“The Commission firmly recommends that it must be required to provide views and advice to the Scottish Parliament on the wording of any referendum question ... regardless of whether we have previously published our views on the proposed wording.”

I do not think that anyone apart from the cabinet secretary demurred from that evidence from the Electoral Commission. When the committee reached its conclusions on the matter, we unanimously recommended

“that the Cabinet Secretary recognises the weight of evidence ... in favour of the Electoral Commission testing a previously used referendum question and must come to an agreement, based on this evidence, with the Electoral Commission, prior to Stage 2.”

It is unfortunate that the evidence that is before us for stage 2 indicates that no such agreement has been reached. The cabinet secretary wrote to the convener last week about the matter and said only that the Electoral Commission “is aware of” the amendments in his name in this group; he did not say that the Electoral Commission had agreed to them. Indeed, the Electoral Commission said, in its briefing for stage 2:

“The Electoral Commission’s primary concern is that Parliament is able to access the Commission’s independent advice on the intelligibility of a proposed referendum question at any point it requests it, regardless of whether a question has been asked within that parliamentary session.”

That is the Electoral Commission’s view; it is as strong and unambiguous as it was at stage 1.

It seems to me that the committee has three options available to it at stage 2. The first is not to amend the relevant provisions in section 3 and for those to go on to stage 3 unamended, so that the Electoral Commission will effectively be bypassed with regard to any referendum question that has previously been used. That is what will happen if we do not amend those provisions today.

The second option is to accept the cabinet secretary’s amendments, which do not have—at least, we have not been told that they have—the agreement of the Electoral Commission. The cabinet secretary is shaking his head. I am happy to take an intervention from him.

Michael Russell

On page 2, the Electoral Commission’s briefing says:

“The Commission had a constructive meeting with the Cabinet Secretary to discuss Amendments 90, 91 and 92 relating to the Commission’s role in any question assessment. We are continuing to discuss the finer detail with officials to ensure that the final legislation reflects the principle outlined above.”

I do not think that that is anything other than an accurate assessment of where we are. It does not indicate a rejection of my amendments, which is what you are implying.

Adam Tomkins

I welcome the fact that there has clearly been constructive engagement between your office and the Electoral Commission. I wish it were otherwise, but unfortunately the evidence that we have in front of us today does not allow us to reach the conclusion that that constructive engagement, welcome as it has been, has led to an agreement between you and the Electoral Commission, which is what the committee unanimously called for in our stage 1 report. We unanimously said that there must be “an agreement” between the Government and the Electoral Commission about the Electoral Commission’s role with regard to the testing of referendum questions, where those questions have previously been used. We have no evidence that there is such an agreement. All that we have been told is that the Electoral Commission is “aware”—that is the word that you used in your letter to the convener last week—of your view.

I repeat what the Electoral Commission said, which is that its

“primary concern is that Parliament is able to access the Commission’s independent advice on the intelligibility of a proposed referendum question at any point it requests it, regardless of whether a question has been asked within that parliamentary session.”

The amendments in this group in the name of the cabinet secretary do not give effect to that concern. They do not give effect to the strong, unambiguous and clear view of the Electoral Commission that any referendum question must be tested for its intelligibility by the Electoral Commission, irrespective of whether that referendum question has been used before.

The only amendment in the group that gives effect to the force of the Electoral Commission’s evidence at stage 1 and now, and to the committee’s unanimous recommendation in our stage 1 report, is my amendment 79. Amendment 79 would clarify that, for the avoidance of doubt, the Electoral Commission’s statutory functions as an independent scrutineer of the intelligibility of referendum questions must apply even if a referendum question has already been used. The amendment gives effect to the overwhelming force of the evidence that we received at stage 1, and to the views of the Electoral Commission at stages 1 and 2. The issue can always be revisited at stage 3, but my amendment is the only course available to the committee today that gives effect to our unanimous recommendation at paragraph 72 of our stage 1 report.

For that reason, I urge members to support amendment 79 and to reject amendments 90 to 92 in the name of the cabinet secretary. As I said, I welcome the constructive engagement between Mr Russell’s office and the Electoral Commission, but I regret the fact that that engagement has not yet led to an agreement between the Government and the Electoral Commission about the issue.

I move amendment 79.

Michael Russell

We have heard from Adam Tomkins about why he believes that my amendments should be rejected and his amendment should be accepted. I have the opposite point of view, for which I will make the case.

Amendment 79 would make an inelegant change to section 3(7) to prevent any reuse of already-tested referendum questions. That is illogical and impractical, and amendment 79 is a curious way to achieve the aims that Adam Tomkins set out. Even in drafting terms, amendment 79 does not fulfil his objectives.

Question testing has been at the heart of the debate on the bill. I have heard the evidence that has been presented on the subject and the arguments that have been put forward by this committee and the Delegated Powers and Law Reform Committee. However, there is other evidence, which I have brought to the committee, not least of which is the absolutely clear evidence that exists in the poll by Progress Scotland, which shows how well understood the question is, and the fact that the question has been used so regularly. There is a strong case for saying that a question should have a shelf life, which should be determined at least in part by the way in which it continues to be used.

The committee recommended in its stage 1 report that I consider the evidence and come to an agreement with the Electoral Commission. I have taken that very seriously. I have met and spoken to the commission, and there have been frequent debates and discussions between officials and the commission. I met the commission last week and wrote to the committee to provide an update on progress on the matter. We continue to have constructive discussions, and amendments 90 to 92 are not abstract in that regard; rather, they are concrete examples of a discussion that has moved far along the line.

Taken together, my amendments would mean that a referendum question on which the Electoral Commission had previously reported would have a limited life. Indeed, in the case of the question that was cast in 2014, it would have already expired. A decision about whether a question could be reused would be for the Parliament to make and would require the input of the Electoral Commission. That would mean that a question would be available for reuse and, although the matter would be initiated by the Scottish ministers, it would be decided by the Parliament. That is the right way to move forward.

Before lodging any motion to reuse a question, ministers would have to consult the Electoral Commission. At the same time as lodging the motion, we would have to give details of our consultation with the Electoral Commission and set out why the commission thought that the extended validity period should or should not apply. If the Parliament refused to agree to the question, that would be the end of the matter.

Adam Tomkins

I am grateful to the minister for the clarity of his remarks.

It might well be that there are some things about referendums that we do not yet do well in the United Kingdom. However, one of the things that we do well is the three-way relationship between ministers, the Electoral Commission and the Parliament that legislates to authorise or trigger a particular referendum.

The roles of each are clear and distinct. It is the role of ministers to propose referendum questions. It is the role of the independent statutory Electoral Commission to test the intelligibility of a proposed referendum question to ensure that the interests of voters are paramount and there is no inadvertent confusion in the proposed question. The commission’s function is to represent and put first the interests of voters. It is the function of Parliament—whether that is the UK Parliament or, under the bill, this Parliament—to legislate accordingly.

That is all that I am asking for. The cabinet secretary’s proposal is very close to that, but it is not quite that. What is the cabinet secretary’s reason for wanting to pull back from that clearly established and well-functioning three-way relationship?

Michael Russell

I will disagree with your definition, using the words of the Electoral Commission. When giving evidence to the committee at stage 1, the Electoral Commission made it clear that it saw its role as advising rather than binding Government. It said that it was

“reluctant to step into a space that is for members, for Parliament and for political viewpoints.”—[Official Report, Finance and Constitution Committee, 18 September 2019; c 43.]

I am proposing exactly that: that the final decision will lie with the members of the Parliament. The Electoral Commission will advise, and its view will be heard.

The commission has not rejected that position. There is on-going discussion, as the commission has indicated to the committee. It has said that it is discussing

“the finer detail with officials to ensure that the final legislation reflects the principle outlined above.”

Therefore, the discussion will continue and it may well bear fruit at stage 3. To refuse to accept that progress actually goes against what the Electoral Commission is saying about its role. In my view, the proposal exactly reflects that role, because it would bring in the commission to advise but give the final decision to members, which is exactly how it should be.

I will conclude, as the convener is looking anxious about the time. I believe that amendments 90 to 92 meet exactly the requirements of the committee and that they should be accepted—

Adam Tomkins

On a point of information, convener.

The Convener

You will have an opportunity to make the point when you wind up.

Michael Russell

As I said, I believe that the amendments meet exactly the requirements of the committee. I am asking the committee to support the amendments with the proviso that, if there is further change following the discussions with the Electoral Commission, I am happy to come back to the issue at stage 3. The commission says that the discussion has not concluded, so I am happy to come back at stage 3 once the discussion has concluded. The amendments are a major concession from the Scottish Government and I think that they should be recognised as such.

John Mason (Glasgow Shettleston) (SNP)

I disagree with Adam Tomkins’s comments about there being only one course available to the committee. That is obviously a political statement, and the reality is that several courses are open to us.

We said in our stage 1 report that the cabinet secretary

“must come to an agreement ... prior to Stage 2.”

It is disappointing that that has not happened—I accept that the Government and the commission have moved a considerable way in that direction, but they have not quite got to a conclusion. How do we react to that? We have at least a couple of choices as to which amendments we accept, so I fundamentally do not accept the argument that only one course that is consistent with our report is available to the committee.

We do not want the Electoral Commission to be able to dictate to Parliament—the word “bind” was used. That would be going rather too far in respecting the commission’s position.

Adam Tomkins

Will the member take an intervention on that point?

John Mason

Yes.

Adam Tomkins

There is no amendment on the table that would allow the Electoral Commission to bind Parliament. The Electoral Commission’s role under PPERA is to independently test the intelligibility of referendum questions, and that would be its role under my amendment 79. It will then be for the Parliament to decide whether to accept or reject the Electoral Commission’s advice. The idea that the Electoral Commission would be able to bind Parliament is not accurate.

John Mason

That is exactly my point—the Electoral Commission should not be able to bind Parliament, but the suggestion with amendment 79 is, almost, that we try to get to a position where it would be able to do so.

Adam Tomkins

No.

John Mason

Well, that appears to be the case.

Amendments 90 to 92 would put a time limit on how often a referendum question has to be assessed, which is a reasonable compromise. It is a fairly subjective area and is not black and white; we are talking about opinion and judgment. On that basis, I am positive about the compromise of having the time limits, with the proviso that, following the Electoral Commission’s discussion of the finer details with officials, the provision could be further amended at stage 3.

Alex Rowley (Mid Scotland and Fife) (Lab)

The cabinet secretary has failed to reach agreement with the Electoral Commission. I still do not know why he is so insistent on this point and has not been able to find a way of bringing people together—he has clearly failed to do that. Therefore, I will support amendment 79, in the name of Adam Tomkins.

Let us see whether we can get agreement by stage 3. It is not about compromise; it is about getting the best way forward that is built on best practice, and the evidence is overwhelmingly against what the cabinet secretary and the Government propose. Members can use their votes to force through the proposal, but that will not be a good start on an agenda that the cabinet secretary claims is about trying to bring people together. I will certainly vote against the minister’s amendments 90 to 92 and support Adam Tomkins’s amendment 79.

Patrick Harvie

I am sorry that the tone of the debate so far has been needlessly confrontational. Adam Tomkins said that what the cabinet secretary is offering is very nearly but not quite what Mr Tomkins believes is necessary, and the cabinet secretary said that his amendments represent substantial progress but not the last word and that the matter could be returned to at stage 3. I think that there is perhaps a bit of performative oppositionalism here and that, actually, people are moving together towards something that should be recognised as acceptable.

The two big and contentious issues are the use of primary or secondary legislation and question testing, but the discussion about question testing has changed because of the amendments that we have just agreed to on primary and secondary legislation. Any referendum that takes place within the framework of the bill will be subject to primary legislation that is amendable in Parliament, so Parliament will be entirely capable of saying, if it chooses to do so, that the Government of the day is trying to pull a fast one and get around question testing. In such a case, Parliament would be able to amend the relevant referendum bill to ensure that question testing happens.

The Electoral Commission’s primary concern is

“that Parliament is able to access the Commission’s independent advice on the intelligibility of a proposed referendum question at any point it requests it”.

It seems to me that, regardless of the amendments in the current group, we are already in that position because of the amendments that we have agreed to on the use of primary legislation for future referendums. The cabinet secretary’s amendments 90 to 92 go further in providing Parliament with the additional safeguard or reassurance that we and subsequent Parliaments will be able to make the relevant decisions at the time when we or they wish.

If there is scope for the cabinet secretary to come back and discuss further refinements at stage 3, that will be positive as well, but I think that we are much closer on the matter than some people seem to be presenting.

Murdo Fraser (Mid Scotland and Fife) (Con)

When the committee produced its stage 1 report, it unanimously resolved that the Scottish Government and the Electoral Commission must come to an agreement on the testing of previously used questions. Although I recognise that there has been progress, movement and discussions, it is clear from what the cabinet secretary has said that, at this moment, an agreement has not been reached. No doubt, he will correct me if that is an incorrect interpretation, but I think that that is where we are. Discussions have happened and progress has been made, but the Scottish Government and the Electoral Commission have not actually reached an agreement, so the committee’s strong and unanimous recommendation at stage 1 has not been met.

I therefore think that the kindest thing that we can say about amendments 90 to 92 is that they are premature. They put the cart before the horse, because we do not at this point have an agreement with the Electoral Commission. For the cabinet secretary to have lodged his amendments, which state what he wants the position to be, at a time when there is no agreement with the Electoral Commission is to push the boat out too far.

There is a simple way of dealing with the matter. There is still an opportunity, because there will be another round of amendments at stage 3. In a spirit of openness and compromise, I recommend to the cabinet secretary that he does not press his amendments 90 to 92. As and when agreement is reached with the Electoral Commission, if that occurs, it and the cabinet secretary will tell us what the agreement is, and amendments can be lodged at stage 3 to seek to implement the agreement.

The cabinet secretary’s amendments 90 to 92 simply represent the cabinet secretary’s view on the way forward. For them to be agreed to at a time when no agreement has been reached would be inappropriate and would not meet the spirit or, indeed, the letter of what the committee resolved at stage 1.

Angela Constance (Almond Valley) (SNP)

Later in stage 2, when we come to group 17, we will debate the pros and cons of placing a duty on ministers to follow the advice of the Electoral Commission.

On the amendments that are before us now, there are two important factors. One is how we move matters forward; another is how we protect the role of the Parliament. The tenor of the earlier debate, at least, confirms my fears that amendment 79 is about taking a step backward as opposed to forward. Amendments 90 to 92 represent a serious attempt by the cabinet secretary to take matters forward, in line with the committee’s aspirations as set out in our stage 1 report.

Of course, there continues to be the opportunity for dialogue in advance of stage 3. I think that the committee can take heart from the correspondence from the Electoral Commission, in which the commission said:

“We are continuing to discuss the finer detail with officials to ensure that the final legislation reflects the principle outlined above.”

Amendments 90 to 92 provide substantial reassurance. For example, amendment 92 provides that

“the Scottish Ministers must consult the Electoral Commission.”

The bottom line for me is that the matter should ultimately rest with our Parliament, not with ministers or unelected bodies, as the Electoral Commission itself acknowledges.

Gordon MacDonald (Edinburgh Pentlands) (SNP)

A key policy in the Labour Party manifesto for the forthcoming election is the holding of a referendum on the Brexit deal within six months. Given the timescales that are involved in that regard, and given that we are always told that the United Kingdom Parliament is sovereign, does not that suggest that, as the cabinet secretary said, it will be for members of the UK Parliament to decide whether a test will be involved and whether the question that was used in 2016 will be used again? Will an uneven playing field be created in relation to how questions are used in referenda across the UK?

Alexander Burnett (Aberdeenshire West) (Con)

I heard what Patrick Harvie said. Given the amendment to section 1, the Parliament could add a role for the Electoral Commission in analysing the question. Does he agree that the reverse could occur and the Electoral Commission’s role could be removed under section 1, if that was the wish? Would not the de facto inclusion of the Electoral Commission be more satisfactory?

Patrick Harvie

It is clear to all of us that legislation can always be amended. This Parliament cannot pass legislation that is unamendable by a subsequent Parliament. If the bill is passed and becomes an act, a future bill that is introduced to set up a referendum could amend the act in any direction.

I hope that we never have a Parliament that seeks to abolish or unreasonably restrict the role of impartial bodies. During the stage 1 debate, I publicly urged the Government to be a bit more relaxed about the role of the Electoral Commission. However, it is a simple matter of fact that any subsequent bill could amend the bill that we are discussing today.

Alexander Burnett

I agree with you; I just wonder why you do not agree that including the Electoral Commission would be a better starting point.

Adam Tomkins

I thank all members and the cabinet secretary for their contributions to the debate on this group of amendments. No group is unimportant, but this group is on one of the most important issues that the bill raises.

Referendums decide things. Referendums decide big things—things that matter and change the entire nation. Surely, we all agree that the ground rules for setting up referendums must be unimpeachable. The First Minister referred to the 2014 referendum as the gold standard, and the Edinburgh agreement, which the First Minister signed, was an important part of that. There is a lingering suspicion that seeking to bypass or minimise the independent statutory function of the Electoral Commission is rigging the rules of a future referendum.

As I said in my intervention, there is a very clear three-way relationship, which has been mischaracterised by Mr Mason and Ms Constance today, which is that ministers propose referendum questions, the Electoral Commission independently tests the intelligibility of those questions and Parliament then decides. That should happen for every referendum in the United Kingdom or in any part of the United Kingdom, and that would be the effect of amendment 79. There is nothing in amendment 79 that seeks to bind this or any future Parliament to accepting the recommendations of the Electoral Commission. The Electoral Commission advises. My point, cabinet secretary, is that the Electoral Commission should be able to give that advice with regard to each and every referendum that we hold, irrespective of whether we have previously held a referendum on that question.

Michael Russell

I want to take up Mr Fraser’s point with Mr Tomkins. If my amendments are—as Mr Fraser says—premature, is amendment 79 not also premature? Mr Tomkins’s argument is that I have not reached agreement, and my argument is that I have made progress on reaching agreement, which is reflected in my amendment. Amendment 79 does not reflect any progress at all having been made. Indeed, it is contrary to what the Electoral Commission’s report says about continuing to discuss the finer detail. Does Mr Tomkins accept that his amendment 79 is premature and should be withdrawn, following the argument made by Mr Fraser?

Adam Tomkins

No, I do not. I am coming to that point.

The evidence that we received from the Electoral Commission at stage 1 was clear and unambiguous: the Electoral Commission’s role as an independent scrutineer of the intelligibility of referendum questions must be protected and employed for every referendum that is held in the United Kingdom or in any part of the United Kingdom. That is the force of my amendment: amendment 79 would require that the Electoral Commission’s role in respect of the intelligibility of questions and question testing be maintained for every referendum. That is the advice and evidence that we were given by the Electoral Commission. Except for the cabinet secretary, no one gave evidence to the committee that contradicted or countermanded that advice at all.

Amendment 79 is not premature; it seeks to give full effect to the full weight of the evidence that we received at stage 1. In our stage 1 report, we unanimously concluded, on the basis of all of that evidence, that the cabinet secretary must come to an agreement with the Electoral Commission prior to stage 2—not prior to royal assent or stage 3. Notwithstanding the fact that we all welcome the constructive engagement that the cabinet secretary has had with the Electoral Commission, that agreement has not been reached.

I am afraid that amendments 90 to 92, in the name of Mr Russell, are both inappropriate and premature. The only course available to the committee today that gives effect to what the committee unanimously recommended at stage 1 is to accept amendment 79 and reject the other amendments in the group.

John Mason

Is the member arguing that time is not a factor at all and that it does not matter whether a question was asked a day ago, a year ago, 10 years ago or 100 years ago?

Adam Tomkins

Yes, I am, because I think it is preposterous to imagine that we would hold a referendum on a question the day after we had held a referendum on the same question. No matter how important the issues are, referendums will not be held on them according to that sort of timescale. That is a fanciful and rather ludicrous example.

Referendums are held in the United Kingdom on important matters of constitutional change. They might be held on other issues, but, as Patrick Harvie said, it is difficult to conceive of an issue that is important enough to be decided by referendum that is also somehow not important.

It is elementary that, when we hold referendums, they should be held to the highest possible standard. A key element of that gold standard is that ministers propose referendum questions, the Electoral Commission independently tests the intelligibility of those questions—putting the interests of voters first—and Parliament then decides whether to accept or reject the independent advice of the Electoral Commission. All that my amendment 79 seeks to do is to ensure that any future referendum on any subject—whether that is Scottish independence or anything else—under the authority of the bill meets that gold standard.

Amendments 90 to 92, in the name of the cabinet secretary, do not reach that gold standard—they fall short of it. For that reason, the amendments should be rejected.

The Convener

The question is, that amendment 79 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Bibby, Neil (West Scotland) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Tomkins, Adam (Glasgow) (Con)

Against

Arthur, Tom (Renfrewshire South) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Harvie, Patrick (Glasgow) (Green)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 79 disagreed to.

Amendment 90 moved—[Michael Russell].

The Convener

The question is, that amendment 90 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Arthur, Tom (Renfrewshire South) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Harvie, Patrick (Glasgow) (Green)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

Against

Bibby, Neil (West Scotland) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 90 agreed to.

Amendment 91 moved—[Michael Russell].

The Convener

The question is, that amendment 91 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Arthur, Tom (Renfrewshire South) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Harvie, Patrick (Glasgow) (Green)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

Against

Bibby, Neil (West Scotland) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 91 agreed to.

Amendment 92 moved—[Michael Russell].

The Convener

The question is, that amendment 92 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Arthur, Tom (Renfrewshire South) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Harvie, Patrick (Glasgow) (Green)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

Against

Bibby, Neil (West Scotland) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 92 agreed to.

The Convener

The question is, that section 3, as amended, be agreed to. Are we agreed?

Members: No.

The Convener

Conservative members’ opposition is noted.

Section 3, as amended, agreed to.

After section 3

The Convener

Amendment 4, in the name of Adam Tomkins, is grouped with amendments 4A and 75.

Adam Tomkins

On page 11 of the Electoral Commission’s September 2016 report on the 2016 EU referendum, recommendation 3 states:

“the starting assumption for Governments and legislatures should be that referendums are”—

I am sorry, convener, but I am looking at the wrong section. I should be speaking to amendment 4 on the minimum regulated period.

The Convener

That is correct. It is okay—take your time.

Adam Tomkins

Right, let me start that again.

I do not think that the cabinet secretary and I are going to disagree on this issue because the force of my amendment 4 and the force of his amendment 75 are broadly similar and are two different means of achieving the same ends. The bill should be amended in one way or another to ensure that the minimum regulated period for any referendum that is held under the authority of the legislation is 10 weeks.

As introduced, the bill had no minimum regulated period. The committee took evidence that there should be a minimum period and that best practice appeared to be that a minimum of 10 weeks should be adopted. I am happy to be corrected but, as I understand it, the force of amendment 75 and the force of amendment 4 are two different legislative means of seeking the same result. I am not going to die in a ditch over whether the means in amendment 4 or the means in amendment 75 should be adopted. Amendment 75, which simply defines a referendum period in the schedule of definitions is probably more elegant and neater than the alternative, so I would be happy not to press amendment 4 if the cabinet secretary wishes to move amendment 75, unless he thinks that there is some material difference between the amendments that I have overlooked in my sleepiness.

Jackie Baillie has lodged an amendment to my amendment that would make the minimum regulated period 12 weeks rather than 10. The selection of any period of time is, I suppose, arbitrary, but my question for Jackie Baillie is why it should be 12 weeks when the evidence that the committee took was that 10 weeks is the minimum that is required. There was no discussion of a 12-week period during our evidence taking but there was quite a lot of discussion of a 10-week period. There are recent unfortunate exceptions to this but, by and large, this committee seeks to follow the evidence, and the evidence is that the minimum regulated period should be 10 weeks, so I would stick with that and not extend to 12 weeks. Again, that is not a ditch in which I propose to die.

I move amendment 4.

Jackie Baillie (Dumbarton) (Lab)

Let me add to the outbreak of consensus, because there is broad support for the principle that the length of the regulated referendum period should be set out in the bill. I am, however, conscious that, if Adam Tomkins withdraws amendment 4, amendment 4A has nothing on which to hook itself, so I am slightly disappointed that he is prepared to cave for the cabinet secretary’s form of words when his is clearly far superior.

That said, I was challenged to say why I am seeking a period of 12 weeks. In previous debates on amendments, Adam Tomkins has said that these are momentous decisions that could be taken in future referenda. Notwithstanding the evidence that the committee took from expert witnesses about what goes on elsewhere, we have now had experience of two referenda in a short period of time. Because of the significance of the decisions, a minimum period at 10 weeks is perhaps slightly too short a time. I would rather err on the side of caution and give the maximum possible time for such a debate, as well as allowing for the normal functioning of local government and the Scottish Government.

John Mason

Will the member take an intervention?

Jackie Baillie

I am just about to finish, but please go ahead, Mr Mason.

John Mason

I am still not clear why it should be 12 weeks rather than, say, 14, 16 or 20.

Jackie Baillie

I think that 12 weeks is better than 10. I have said that I base that on the experience that we have had of two referenda. We need to allow a minimum period with sufficient time for the democratic process to be thorough, so 10 weeks is just a bit too short.

I move amendment 4A.

Michael Russell

I simply confirm that I believe that 10 weeks is correct. The committee welcomed the Scottish Government’s openness to considering a minimum regulated period when it reported. The 10-week period was the view of stakeholders, and it seemed to be an appropriate period. Therefore, I think that 10 is the right number. There is no great harm in 12—and I think that Jackie Baillie has lodged an amendment that would provide for a 14-week period in other circumstances; the number keeps growing. Stakeholder opinion on 10 weeks was unanimous, as far as I recall.

It would be for the Parliament to decide on a longer or shorter referendum period for a particular referendum if referendums were being held under primary legislation. However, the framework position—and I go back to the point that this is a framework bill—would be what is supported.

As for the elegance or otherwise of the solutions, I simply argue that amendment 75 will have the same practical effect as amendment 4 but fits with the nature of other amendments, including those on removal of powers in sections 1 and 2, which we have considered. Amendment 75 fits with how the bill is drafted and cross-refers. In the circumstances, I ask Adam Tomkins not to press amendment 4—that will have an unfortunate but necessary effect on amendment 4A. Amendment 75 will produce a result.

Patrick Harvie

I am pleased that there is agreement on putting the figure in the bill and I agree that amendment 75 is the neater way of doing it.

In deciding what the figure should be, there is an important balance to strike. There should be a minimum period, to ensure that the referendum is held in a fair, legitimate and trustworthy way, but there is a danger of extending the period too much. Some referendums are time sensitive. I am pleased that so far in this country we have not gone down the route that some jurisdictions have taken and held referendums on budgetary matters, such as tax rates—some countries have done that; I hope that we do not do so. However, if a Government was elected that considered it legitimate to hold a referendum on a national tax rate before a budget came into effect, there would be a clear time limit by which the referendum would have to be achieved. Extending the timescale would therefore be a risk in relation to some referendums that we might want to hold.

I recognise Jackie Baillie’s point about comparing the two, big, controversial and highly contentious referendums that happened in recent years, but I think that the contrast between them is not to do with the short regulated period. In the case of the 2014 referendum, we had, in effect, three years of deep political debate, because everyone knew that the referendum was coming. The shallowness of the 2016 referendum was not about the short number of weeks in the run-up to the referendum day but about the conduct of the political campaigns and the absence of consequences similar to the consequences for people who are dishonest in election campaigns—we will come to that issue when we consider a later group of amendments.

I see no case for a 12-week period and I am happy that agreement has been reached on putting a 10-week period, for which we heard clear evidence, into the bill.

Adam Tomkins

I have nothing further to say. The Electoral Commission is pushing for 10 weeks, not 12, and has welcomed amendment 75, in the cabinet secretary’s name, which specifies a minimum 10-week referendum period.

I am happy to support amendment 75. The cabinet secretary has twice suggested that my impeccable drafting was inelegant—

Michael Russell

And I’m not finished yet.

Adam Tomkins

That hurts, but the cabinet secretary can apologise later. I think that amendment 75 provides an elegant solution and I am happy to support it.

Jackie Baillie

Given the debate, I am happy not to press amendment 4A, albeit that it was elegantly written.

Amendments 4A and 4, by agreement, withdrawn.

The Convener

Amendment 93 is in a group on its own.

James Kelly (Glasgow) (Lab)

I am pleased to return to the committee that I recently served on to speak to my amendments. Amendment 93 seeks to ensure that for a result to be valid in a referendum, there must have been a 50 per cent turnout. In considering the amendment, it is important to look at the background to the Referendums (Scotland) Bill. When the bill was published, the Government was enthusiastic in pointing out that the bill related not just to independence referenda but to referenda in general. Amendment 93 should therefore not be seen, as some have tried to misrepresent it, as an attempt to meddle in a future independence referendum. Clearly, in any future independence referendum turnout would exceed 50 per cent, and it is disingenuous to suggest otherwise.

Referendums on moral issues have been referred to, while Patrick Harvie just talked about a referendum on a national tax rate ahead of a budget. In either case, it would be important that the referendum result was not contested. If turnout was less than 50 per cent, the result would lack credibility and would be contested. Amendment 93 seeks to avoid that and to ensure that, for any result to be valid, the turnout must be 50 per cent.

Amendment 93 should be considered alongside other amendments, which I will move later, on increasing the length of polling time available, on the possibility of Saturday voting and on increasing the information that is available to voters. All those amendments seek to push up voter turnout and thereby lend democratic credibility to the result.

Any referendum outcome must be seen as the settled will of the Scottish people. That comes into question if less than half the population voted. I urge members to support amendment 93, as it adds credibility and validity to the outcome of any future referendum.

I move amendment 93.

Patrick Harvie

Like others, I am sure, I welcome James Kelly back to the committee.

I hope that we would all want turnout to be high, whether in referendums or elections. I think that we would all want a politically engaged population who see voting as something important to do. At the same time, though, I fundamentally respect people’s right to abstain in a referendum—to say, “A plague on all your houses,” whether it is political parties or campaign groups—and not have their vote counted. The effect of amendment 93 would be that abstentions are in effect counted as votes against change. The amendment is rather like the suggestions that have been made elsewhere for a two-thirds majority. It would give an in-built advantage to anyone arguing against political or social change in a referendum campaign, as against those in favour of change. On that basis, it would breach the principle that everybody’s vote should count for the same.

I commend James Kelly on one point, though, which is the courage that he has shown by coming to the committee and moving amendment 93, as someone who believes that a 50 per cent turnout is the gold standard of legitimacy but who was first elected to the Scottish Parliament on a 48.5 per cent turnout. That would pose me no problems, but I am sure that it is slightly embarrassing for James Kelly, so I am grateful for his efforts to overcome that.

Angela Constance

By lodging amendment 93, Mr Kelly has succeeded in triggering an entire nation back to 1979. It is like the ghost of Christmas past, I am afraid. Dr Alan Renwick told the committee:

“Turnout thresholds are clearly undesirable and a bad idea because they encourage people who are in danger of losing to suppress turnout in order to invalidate the vote.”

He went on to say:

“use of an electorate threshold was discredited by the 1979 experience, so you would be a brave politician to recommend introducing one in Scotland.”—[Official Report, Finance and Constitution Committee, 4 September 2019; c 27.]

I think that we can indeed agree that Mr Kelly is brave.

I stick to my previous publicly made comments on the issue. In the context of a referendum on Scotland’s constitutional future, I very much think that this is a wrecking amendment. It is a wolf in sheep’s clothing. It is anti-democratic for some of the reasons that Patrick Harvie has outlined, because it assumes that not voting equates to support for the status quo. I am vehemently opposed to the amendment.

Gordon MacDonald

This morning, we have discussed how referendums are always about important issues that tend to engage voters. If we look at the history of referenda throughout the UK—from the Northern Ireland border poll in 1973 and the European Union membership referendum in 1975 right up to the Scottish independence referendum in 2014 and the EU membership referendum in 2016—there has been no minimum turnout requirement.

I accept that, as Patrick Harvie and Angela Constance have said, such an approach discourages voter turnout. We have to remember that, in the devolution referendum in 1979, the dead were in effect recorded as voting no. We do not want to return to that situation.

Tom Arthur

I, too, oppose the amendment, for all the reasons that have been shared by colleagues. Principally, I oppose it because it incentivises a campaign to encourage people not to vote. In an age when our democratic institutions and values are under attack, we should not be seeking to encourage that.

Michael Russell

That previous point is an important one: a turnout threshold incentivises people not to vote. Not voting is seen as a political action, so it discourages participation. I find it inconsistent that Mr Kelly has made such a proposal, given that he has lodged amendments that encourage participation by increasing the polling hours.

The 1979 referendum did not follow the exact same procedure, but it raised a series of anomalies, including people who could not return to where they lived in order to vote because of ferry difficulties. I know that that was the case, because I lived in the Western Isles at the time. There were problems with people who had—sometimes by mistake—more than one address. A range of difficulties presented.

The committee has received no evidence at all to support the idea that any threshold other than a simple majority should be followed. Therefore, although amendment 93 is a worthy attempt, it is a misguided one. I ask Mr Kelly not to press amendment 93. If he does, I urge the committee to reject it.

James Kelly

I will press amendment 93. Ultimately, the test on the amendment is whether it would enhance the process of any future referendum. Again using Mr Harvie’s example again of a referendum on financial powers ahead of a budget, I put it to you that, if the turnout was below 50 per cent, it would be contested, and it would be difficult for the Government—

Adam Tomkins

Given what he has just said, why does Mr Kelly think that all three independent reports into the use of referendums that the committee has looked at have unanimously and strongly concluded against threshold or turnout requirements? The House of Lords Constitution Committee, the independent commission on referendums and the Venice commission have all recommended against seeking to rig the rules of referendums by fiddling with either turnout or threshold requirements. Given that overwhelming evidence, why does Mr Kelly alone seem to think that doing that would enhance rather than inhibit democracy?

James Kelly

It is not a question of rigging the rules; it is a question of ensuring that any outcome has democratic credibility.

As I was saying, if a budgetary proposal is taken to the country and fewer than half the people participate in that referendum, that result, when it is returned, will be contested; it will not be credible. Like other members, I want to ensure that there is voter participation, with turnouts in excess of 50 per cent, so that the outcomes of referendums are credible.

I seem to have ruffled the feathers of some Scottish National Party members, given their comments about the 1979 referendum. I completely reject Angela Constance’s suggestion that amendment 93 is a wrecking amendment. If there were to be an independence referendum in future, surely no one disputes that turnout would be in excess of 50 per cent. Let us face it: people would turn out in droves to reject the proposition that we should enter into an arrangement whereby we would have a £12 billion deficit every year.

John Mason

Do you accept that, if one side was winning by 49 per cent to 40 per cent, there would be an incentive for the side that might lose not to vote, which would, in effect, give that side 40 per cent plus 11 per cent—that is, 51 per cent—and it would then win? The intention of getting more people to vote is a good one—that is great; we all accept that. However, in practice do you not accept that we could end up with an undemocratic result?

James Kelly

It is nonsense to suggest that people would go round saying, “Let’s not vote in this referendum.” We are all politicians who care keenly about the democratic process, as do a lot of people in the country. That is the spirit in which people would take part in campaigns.

Ultimately, I am seeking to ensure that the outcomes of referendums are credible. I ask members to support amendment 93.

The Convener

The question is, that amendment 93 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Bibby, Neil (West Scotland) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)

Against

Arthur, Tom (Renfrewshire South) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Harvie, Patrick (Glasgow) (Green)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 9, Abstentions 0.

Amendment 93 disagreed to.

The Convener

Amendment 94, in the name of Neil Findlay, is grouped with amendment 95. I understand that Alex Rowley will speak to and move amendment 94.

Alex Rowley

Convener, Neil Findlay sends his apologies for being unable to attend the meeting.

Amendment 94 would create a category of referendum, the citizen initiative referendum, which could be initiated from below, in an attempt to bridge the democratic gap.

For many ordinary people, the Scottish Parliament has for much of its existence seemed cut off from the concerns of their daily lives. It is important that we address that. By complementing the on-going work of the petitions system, we can help to reverse the trend towards a little more than 45 per cent of the population exercising their democratic right.

The threshold for initiating a citizen initiative referendum would be 300,000 signatures. That is a substantial threshold, but we are unapologetic about that; any issue that leads to a referendum, with all the time and expense that that involves, must be important to a large number of Scottish people. Even if the 300,000-signatures threshold is not met, we expect there to be an increase in democratic participation as citizens come together to campaign on causes that matter to them. The Scottish Government has consistently said that it embraces such participation.

We appreciate that there might be concerns about such a novel proposal but we want to revitalise our democracy and bold steps are needed if we are to do so.

I move amendment 94.

Jackie Baillie

Amendment 95 builds on amendment 94, which sets out arrangements for a citizen initiative referendum—a novel approach, which is designed to bridge the democratic deficit. I have sought to provide an appropriate timescale for such a referendum, which is a minimum regulated period of 14 weeks.

On balance, I think that more time would be needed for such a referendum than would be needed for a Government-initiated referendum. There would need to be sufficient time for a proposition to be well understood and for proposals to be properly scrutinised and discussed. Hence my choice of 14 weeks.

Patrick Harvie

I am pleased that we have the opportunity to discuss amendment 94.

I certainly would not want to be thought of as being hostile to the idea of citizen initiative referendums. Greens have always argued that representative democracy is part of our democratic process and should be augmented and added to by participative and deliberative processes. For that reason, we championed participatory budgeting. We also championed a public petitions systems when Parliament was being established, and we urged councils around the country to adopt public petitions systems—I think that most have now done so. We are pleased that there is now an approach to the use of citizens assemblies at local and national level. The citizens assembly of Scotland is currently considering broad constitutional questions and later there will be a citizens assembly on climate.

All those things are innovations that I welcome. However, I suspect that we are not quite ready for amendment 94. I would very much welcome the view of the current citizens assembly on whether a citizens initiative should be able to trigger a referendum. It would be more appropriate to hear the views of citizens assembly participants on whether such an approach would be a positive innovation, in the context of participative and deliberative processes, than it would be for the committee to decide that now.

In the absence of clear evidence on the issue being taken at stage 1 of the bill, it would be premature for us to make a decision on it. However, I would very much welcome a debate on the question, whether at stage 3 or through the citizens assembly, if that body wants to consider a proposal along the lines that are set out in amendment 94.

On amendment 95, I am not convinced that there is a case for extending the minimum regulated period in the way that Jackie Baillie suggests, but it will not be relevant if the committee does not support amendment 94.

Adam Tomkins

I agree with quite a lot of what Patrick Harvie said. A missed opportunity in the bill, so far, has been that we have not thought carefully or deeply about the relationship between democracy by referendum, parliamentary democracy and other citizen initiatives, including citizens assemblies. It is unfortunate that the bill has not given us the opportunity to think through some of those issues a little more carefully and deeply.

Amendment 94 is bonkers. It is a really strange and extremely dangerous amendment, which is fantastically ill conceived. For example, it says:

“A referendum held under this section is advisory”,

as if other referendums might somehow be different, without explaining what “advisory” means. It also gets wholly wrong the role of the Electoral Commission, which we have debated this morning. It says:

“It is for the Electoral Commission to specify the wording of the question or questions in a referendum held under this section.”

We have already seen that that is not what the Electoral Commission is for; the Electoral Commission’s role is to give advice about the intelligibility of referendum questions, not to specify or bind.

The fundamental flaw in amendment 94 is that it would lock Scotland into an independence neverendum. It is unfortunate, but I am happy to concede that there will always be 300,000 people in Scotland who think that Scotland should be an independent country—although many more will take the correct view. [Laughter.] The proposed approach in amendment 94 would enable 300,000 cybernats—or 300,000 nationalist campaigners—to petition the Electoral Commission for an independence referendum, and the amendment provides that once that number of signatures has been obtained,

“a referendum is to be held.”

We would have a permanent independence referendum under amendment 94, which was moved by Alex Rowley but lodged in the name of Jeremy Corbyn’s left-hand man in Scotland, Neil Findlay, and which shows how weak the Labour Party is when it comes to protecting the union.

Amendment 94 is a Labour amendment that would lock Scotland into a permanent independence neverendum. For that reason, as well as its manifest inadequacies in the detail of its inelegant drafting, we will oppose it.

Michael Russell

I oppose amendment 94, but not for the reason that Mr Tomkins has just outlined. I am not an extremist in any sense; I do not veer between the extremes of wanting a perpetual referendum and the position of the acting leader of the Scottish Tories, Jackson Carlaw—I am not sure that he is acting the role very well—who apparently said this week that there should not be another referendum until 2054, when I will be 101. There will be seven Scottish Parliament elections between now and then. That is clearly a ludicrous proposition.

Adam Tomkins

I agree—it is too soon. [Laughter.]

Michael Russell

I hope that the Official Report has captured Mr Tomkins’s belief that a referendum in 2054 would be too soon. That says something about democracy.

I would not use the word “inelegant” to describe amendment 94. It has simply not been thought through—it is threadbare. It would allow any voter to initiate a referendum by starting a petition that goes on to collect 300,000 signatures. Why has the figure of 300,000 been chosen? The Scottish people are well known for their sense of humour. I note that Boaty McBoatface received 124,109 votes. With the low threshold that has been proposed, it is clear that the mechanism proposed by amendment 94 could be used for a variety of purposes.

The amendment lacks any detail on who would be entitled to add their signature to such a petition. Would that ability apply only to those who were over 16 or 18, or would people of any age have it? Would they have to be resident in Scotland, or could anyone in the world add their name to the petition?

On top of that, there is the issue of whether, given what the Electoral Commission is for, it would wish to take on the roles that are specified in amendment 94. No consideration is given to the matters of the accuracy of the signatures or the eligibility of people to sign such a petition. The amendment is completely threadbare and absolutely out of place.

Amendment 94 also fails to recognise that, if an individual citizen wants to use a petition to initiate a referendum, a route to do so already exists. I have some sympathy with Mr Harvie’s position—that route could be improved on. I am not absolutely against initiative referenda. People can petition the Scottish Parliament and, if they collect sufficient signatures, action can be, and is, taken. The petitions system allows individuals to directly affect Government policy. I cite as evidence of that Gillian Martin’s Seat Belts on School Transport (Scotland) Bill, which she introduced in February 2017 and which received royal assent in December of that year; it was directly related to the petitions process. There is a way for an individual to try to change Government policy through existing procedures. Can it be improved? Of course. Would amendment 94 improve it? Absolutely not.

If amendment 94 is a serious amendment, it should not have been lodged in the terms in which it has been lodged. On top of the practical defects that I have outlined, there is also the question of who would pay for such a referendum, how the Parliament would react and what the limits of the process would be. I agree that there should be a debate on the subject, but accepting amendment 94 is not the way to have that debate, and I urge the committee to reject it.

The Convener

I invite Alex Rowley to wind up on amendment 94.

Alex Rowley

Neil Findlay will be disappointed that he was not able to engage in today’s discussion. Amendment 94 is more of a probing amendment that was lodged in an attempt to widen the discussion on such matters.

If people knew that the Referendums (Scotland) Bill was going through Parliament, I am sure that many of them would think, “What on earth?”, because the referendums that we have had have caused utter chaos and divided our country. A wider discussion needs to take place about how we engage with people. There are politicians who believe that politics is for politicians, except when they want people’s votes.

Although Neil Findlay’s amendment 94 has been criticised, he has sought to raise the wider issue of how we build on democracy and stop people being turned off. The most common comment that I get on the doorsteps at the moment is, “We only see you when you want our votes.” The way that we do politics in this country is changing.

The Scottish Government has felt the need to introduce a referendum framework bill.

I do not intend to press amendment 94, but Neil Findlay was right to flag up that we have to look at how we engage people and make politics more relevant to their lives.

Amendment 94, by agreement, withdrawn.

The Convener

Amendment 95, in the name of Jackie Baillie, was debated with amendment 94. Jackie Baillie to move or not move.

Jackie Baillie

Given that I have lost amendment 94, which was the hook, I will not move amendment 95, convener.

Amendment 95 not moved.

Sections 4 to 6 agreed to.

Schedule 1—Further provision about voting in the referendum

The Convener

Following the next group of amendments, I intend to have a short comfort break. Amendment 5, in the name of the cabinet secretary, is about referendums administration in general and is grouped with amendments 6 to 17, 19 to 22, 24 to 26, 43, 50, 64 and 65.

Michael Russell

This group has 24 technical amendments that were requested by the Electoral Commission and the wider electoral community. I do not believe that the items are controversial, but of course they need to be considered seriously.

The first sub-group relates to granting emergency proxies, and is covered by amendments 5 to 7. As introduced, the bill provides for voters to apply for emergency proxies when circumstances that arise after the deadline for usual absent vote applications mean that the voter cannot attend the polling station on the day of poll. That is to ensure that voters are not disadvantaged due to medical, employment or other situations beyond their control.

Electoral registration officers have suggested that the current rules do not make adequate provision for some medical emergencies. A voter who suffers a medical emergency near to the deadline for applying for absent votes may be undergoing treatment or otherwise incapacitated for a sufficient length of time that they cannot apply to be an absent voter before that deadline. Although voting is important, applying for a proxy vote might not be the first thing that someone would think of when coping with a serious medical event.

On that basis, I have lodged amendments that would give electoral registration officers the power to grant an emergency proxy to voters in such circumstances. When applying for this proxy, voters will need to provide information about the medical event and why it meant that they could not apply for a proxy before the usual deadline. The change will ensure that voters are not unfairly prevented from voting because a serious medical event happens at a particular point in the electoral timetable.

Amendments 8, 15, 19, 25, 26, 43, 50 and 64 all relate to the status of Easter Monday in the administrative timetable. Electoral administrators have asked that Easter Monday should be added to the list of days that do not count for the administrative timetable for the poll at a referendum. Those days are normally referred to as “dies non”.

The other dies non are Saturdays and Sundays, Christmas Eve and Christmas Day, bank holidays in Scotland and any day which is appointed for public thanksgiving or mourning. Electoral administrators are concerned that having a different set of dies non from those that apply at other devolved elections could possibly lead to voter confusion and have suggested that a standardised approach would be more appropriate. The Government has accepted that argument and we are lodging the amendments that will standardise the dies non across devolved elections and referendums.

Amendment 9 was requested by electoral registration officers and removes the power for the chief counting officer to prescribe the form of the application to register to vote. The power to prescribe a bespoke registration form for the 2014 independence referendum was needed because it was open to 16 and 17-year-olds to register for a vote at that specific referendum. Normally when someone completes an application to register form, they are automatically registered for all elections at which they are eligible to vote. However in 2014, 16 and 17-year-olds did not have the vote at any other election and therefore an application form was required that specifically referred to them being allowed to register only for the independence referendum.

That power allowed the chief counting officer to prescribe that form and to require electoral registration officers to use it. Because the Government has now extended voting to 16 and 17-year-olds at all devolved elections—which I would like to see for all elections in the UK—there is no need for a separate bespoke form. The normal online and paper registration forms make appropriate references to 16 and 17-year-olds being able to vote at Scottish Parliament and local government elections, and therefore at any referendum. There is no need for the chief counting officer to prescribe the registration form for future referendums, and this amendment removes that unnecessary and sometimes confusing provision.

Amendments 11 and 24 were requested by the Electoral Commission and will require the chief counting officer to consult with the Electoral Commission before issuing directions to counting officers or electoral registration officers.

As it stands, the bill does not require consultation with the Electoral Commission. However, consulting with the Electoral Commission before issuing directions is already current practice at local government elections and is the proposed procedure for Scottish Parliament elections set out in the Scottish Elections (Reform) Bill. Even without the amendments, it is likely that the chief counting officer would informally consult with the Electoral Commission, as happened at the 2014 referendum. However, the amendments will formalise the practice that was used at the 2014 referendum and will ensure that consultation with the Electoral Commission is always conducted in future polls in the same manner, thus creating a high standard of administration and consistency. Consulting with the Electoral Commission ensures that directions have been externally reviewed, and the amendments will increase trust in the way that the referendum is run.

Amendments 10, 16, 17, 20, 21 and 22 allow for electoral registration officers to provide counting officers with two interim updates of the electoral register in the run-up to the close of registration, which is 12 days before the date of the referendum. Those changes will bring referendums into line with devolved elections, when the provision of interim updates is normal practice. The amendments have the support of electoral registration officers. Interim updates assist counting officers to issue poll cards and postal ballot packs to newly registered voters, or those who have changed their method of voting, as early as practicable.

Amendments 12, 13 and 14 have been lodged at the request of electoral registration officers. Currently, paragraph 16(4) of schedule 1 to the bill allows for electoral registration officers to appoint deputes for the purposes of the bill. However, we have received representation from EROs that that differs from normal practice at elections, when local authorities approve depute electoral registration officers. They are concerned that there might be a difference in what deputes are approved to do, which might cause administrative difficulties. In line with that representation, we are now proposing that the bill be amended so that local authorities rather than EROs will be responsible for approving deputes. That will mirror the equivalent provision for deputes at other devolved elections.

Amendment 65—I am coming to a conclusion, convener—will allow the code of practice for electoral observers at local government elections to apply at referendums that are held in Scotland. That change has also been requested by the Electoral Commission.

The Scottish Government is also seeking to extend the same code to Scottish Parliament elections through another bill that is currently before the Parliament. The code of practice for observers at Scottish local government elections is already in place and was laid before the Parliament by the Electoral Commission in December 2018. The code of practice explains how to become an observer and what is expected of an observer, and it provides guidance for electoral officials on working with observers. It is written generically in a way that applies to observation at any electoral event and is not specific to a particular election. The code functions well for other elections and referendums. Applying the existing code of practice to referendums under the legislation that we are discussing today will avoid the Electoral Commission having to prepare a separate code.

I hope that those explanations are helpful.

I move amendment 5.

Adam Tomkins

I have a question about amendment 24. I want to ensure that I have understood it properly. It says:

“Before giving a direction to a registration officer, the Chief Counting Officer must consult the Electoral Commission.”

However, I do not understand what those directions are. Am I correct in thinking that those directions are not given to counting officers at the count, so there is no sense that anything will be slowed down in the process of counting votes, and that the directions are given by the chief counting officer to counting officers well in advance of the count? I just want to be clear that the amendment will not inadvertently slow down the process of counting votes.

Michael Russell

It will not. There is a power of direction for the chief counting officer. It exists in, for example, local government elections. However, it is a power of direction in terms of the conduct of the election; it is not a specific power of direction at a polling place.

Patrick Harvie

The amendments in this group are, for the most part, uncontroversial improvements. However, I am still a little unclear about the rationale for adding Easter Monday in amendment 8 and those that follow it.

It seems to me that it would be consistent for the minister to bring an amendment with a long list of lots of different religious festivals, or not to include religious festivals. Christmas is, clearly, more than a religious festival, as it is something that is celebrated by secular society at large, not only by people who are religious. It seems to me that we would be consistent either if we included religious festivals of all kinds, as well as public holidays and secular events, or if we had a much more limited list. It is unclear to me why regularity is best achieved by adding Easter Monday to everything rather than removing it from everything. Unless there is a slightly clearer rationale for that, I will record an abstention on amendment 8 and allow the others to go through if it passes.

Michael Russell

I am seeking consistency with the established list. It is open to a member to seek to amend the established list in other legislation. However, at the request of the registration officers, who seek consistency with the established list, I have lodged that amendment. Easter Monday is on that list, because it remains a holiday.

I doubt that I have convinced the member on this matter, and I note his position.

Amendment 5 agreed to.

Amendments 6 and 7 moved—[Michael Russell]—and agreed to.

Amendment 8 moved—[Michael Russell].

The Convener

The question is, that amendment 8 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Arthur, Tom (Renfrewshire South) (SNP)
Bibby, Neil (West Scotland) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Tomkins, Adam (Glasgow) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)

Abstentions

Harvie, Patrick (Glasgow) (Green)

The Convener

The result of the division is: For 10, Against 0, Abstentions 1.

Amendment 8 agreed to.

Amendments 9 to 22 moved—[Michael Russell]—and agreed to.

Schedule 1, as amended, agreed to.

The Convener

We will now suspend the meeting for a five-minute break.

Section 7—Chief Counting Officer

Amendment 23 moved—[Michael Russell]—and agreed to.

Section 7, as amended, agreed to.

Section 8 agreed to.

Section 9—Functions of the Chief Counting Officer and other counting officers

Amendment 24 moved—[Michael Russell]—and agreed to.

Section 9, as amended, agreed to.

Sections 10 to 12 agreed to.

Schedule 2—Conduct rules

Amendment 25 moved—[Michael Russell]—and agreed to.

The Convener

We come to the group on day and time of poll. Amendment 80, in the name of Adam Tomkins, is grouped with amendments 96 to 98.

Adam Tomkins

Amendment 80, in my name, would ensure that the date of any referendum that was held under this bill would not be the same day on which any other election or poll was scheduled to be held throughout Scotland. The amendment would give effect to a recommendation of the Electoral Commission and to the force of evidence that the committee heard at stage 1.

Our committee adviser told us in our stage 1 inquiry:

“Research shows that holding electoral events simultaneously can lead to lower quality electoral processes.”

The Association of Electoral Administrators endorsed that view and said that

“having more than one type of event on the same day adds to the pressures and difficulties in relation to resources.”—[Official Report, Finance and Constitution Committee,18 September 2019; c 19.]

On the basis of that and other like evidence, the committee concluded that, given that referendums are most likely to be called solely on significant issues of major public interest, they should be stand-alone events. That is in the interests of those who run electoral events, such as electoral administrators, and of voters. The Electoral Commission is quite clear about that point. It said in its report on the 2016 EU referendum, which was published in September 2016, that

“the starting assumption for Governments and legislatures should be that referendums are not normally held on the same day as other significant or scheduled polls. In particular, referendums on significant constitutional questions, where political parties and other campaigners are likely to be working more closely together, should never be held on the same day as other scheduled polls.”

My amendment seeks to give force to the principle that referendums, which—let us face it—are likely under this bill to be held on significant constitutional issues, if they are held at all, should not be held on the same day as other polls.

The cabinet secretary may argue that the word ”normally“ should appear in the amendment. It does not do so for the obvious reason that, in all our interaction on the bill, I have been consistent in asking the cabinet secretary to give me examples of issues other than Scottish independence that he imagines that the bill will be used for, and he has not given me any. I do not think that this bill—

Tom Arthur

Will the member take an intervention?

Adam Tomkins

I will in a second. I do not think that it is realistic to expect that we will have referendums on budgets or reproductive rights or anything else under the bill. We are talking about a bill that is designed to pave the way for an independence referendum, and that should not be held—well, it should not be held full stop, but it should certainly not be held on the same day as any other poll in Scotland, whether a referendum or an election.

Tom Arthur

I want to understand the implications of Adam Tomkins’s amendment. If a referendum was legislated for in this Parliament and, subsequent to that, an electoral event took place simultaneously as a consequence of a UK Government action, such as a general election or a UK-wide referendum, what would happen? He used the example of 2011 when the alternative vote referendum took place on the same day as the Scottish parliamentary election.

Adam Tomkins

That experience was an unhappy one and it should not be repeated. If this Parliament were to legislate to the effect that no referendum should be held on the same day as another significant electoral event, the UK Government would want to take that very seriously. Absent that, there is nothing to stop the UK Government holding a general election on the same day as a referendum.

My amendment would not guarantee that we could not have a repeat of 2011, but it points in that direction and should therefore be adopted.

On the other amendments in the group, in the name of James Kelly, I am agnostic about changing 7 am to 6 am and changing 10 pm to 11 pm, but I am certainly not agnostic about changing polling day to a Saturday. In the light of the extraordinary intervention by the Chief Rabbi yesterday in the general election campaign, what consultation has James Kelly undertaken with the Jewish community in Scotland about whether holding a referendum on Shabbat is something that the Jewish community would feel relaxed about?

It seems to be yet another very unfortunate sign that the rights of the Jewish community are being wilfully overlooked by what used to be one of the major parties of the United Kingdom. Polling is held on a Thursday in this country for a good reason—it is not a religious day in any of the major religions in the United Kingdom. Friday voting would cause significant complications for the Muslim community, Saturday voting would cause significant complications for the Jewish community, as it is Shabbat, and Sunday would cause significant complications for practising Christians. I am not opposed to and have an open mind about changing the polling day, but I would want to see that there had been substantial consultation with religious minorities, particularly in the current context of the extraordinary intervention by the Chief Rabbi yesterday.

I urge the committee to reject amendment 96, in James Kelly’s name, and to support my amendment 80.

I move amendment 80.

James Kelly

I am pleased to speak to amendments 96 to 98. Amendment 96 is a probing amendment, and I will explain shortly why I lodged it. However, I certainly want to move amendments 97 and 98.

There is a duty on us all to seek to increase voter turnout. Thursday is always seen as the traditional polling day, but I think it is worth examining the possibility of weekend polling days. Amendment 96 prescribes a Saturday, but a Sunday could also be looked at. Moving to a day on which not as many people are at work would give a greater opportunity for people to participate. People who work on a Thursday might also have caring or childcare responsibilities that potentially restrict them in getting to the polling station. I am interested in probing whether having voting on alternative days might increase voter turnout.

With regard to the hours, I think that we should move from a 15-hour voting day to a 17-hour voting day. Increasingly, people are leading more flexible lives and have more demands on their time; therefore it makes more sense for the polls to open at 6 am and close at 11 pm. It does not seem that long ago that council elections were constrained to an 8 am start and a 9 pm finish, and the move to a 7 am start and a 10 pm finish has increased voter turnout in those elections.

I ask members to take those points on board when considering my amendments.

John Mason

My main argument, especially against James Kelly’s amendments, is that the committee has not taken evidence on them and, as Adam Tomkins indicated, some of the changes could be quite controversial and impact sections of the community. Frankly, we have not looked at the issues in any detail whatever. It would be very unfortunate to accept amendments at stage 2 when we did not consider those issues at stage 1. I feel quite strongly about that aspect of the parliamentary process—it is even worse if such amendments appear at stage 3 without any evidence having been taken.

In my opinion, to have amendments appear at stage 2, when we have not looked at those issues at stage 1, undermines the whole bill process.

I have some sympathy with the idea of voting not being fixed to Thursdays. What is so magical about Thursdays? Many schools need to close, particularly in Glasgow, which is hugely disruptive to parents, teachers and children, so there is a lot to be said for Thursday being a bad day for voting. However, there are problems with other days, too. Some countries have voting over several days, so another option would be to have voting over three days or a week, but we have not taken evidence on that.

In relation to the hours of voting, there are polling places in my constituency to which fewer than 100 people turn up over 15 hours in a day. Those polling places would be even quieter if they were open for 17 hours. One of the answers for people who cannot go to vote, including the staff at polling places, is to give them a postal vote. We have to look at the issue in conjunction with whether we can have postal votes or other forms of voting, rather than just extending the hours for which polling places are open. We do not know whether staff will be able to get to polling places if there is a 17-hour polling day.

For all those reasons, particularly the fact that we have not taken evidence on the matter, I suggest that we reject the amendments in the group.

Patrick Harvie

It would have been sensible to have consulted properly before lodging amendment 96. I am quite open to the idea, in principle, of multiday voting, which John Mason mentioned. Although it is an interesting principle, there would be significant practical implications, including the cost of running the poll and the volunteer time. We all know that a vibrant election relies on a lot of volunteer effort from campaigners and people in political parties, and we should not take that for granted.

I am not convinced that we should change the bill, at this point, to go for voting on a different day or for multiday polling. I am not aware of there being a desperate demand for polling stations to be open from 6 am and until 11 pm to deal with rushes at those times, so I am not convinced that there is a need to extend the times that polling stations are open.

On amendment 80, in the name of Adam Tomkins, I think that we all agree that referendums should be stand-alone events. Not only should a referendum not take place on the same day as another electoral event; the two events should probably be separated by a reasonable period.

I do not share Adam Tomkins’s confidence that we can simply rely on the goodwill of the UK Government to respect a poll date that has been set for a referendum and to not call an election in the same period. Just recently, the 2017 snap election was called right in the middle of the Scottish local election campaign. The respect for the need to separate electoral events has simply not been shown to exist, so I do not think that we can rely on it. If we were to agree to amendment 80 and were to subsequently pass legislation that set the date of a referendum, but a UK snap election were called in the middle of the campaign, I worry that it would be our referendum process that would be subject to court action. I worry that there would be a challenge to the legitimacy of holding the referendum during a UK election that had subsequently been scheduled.

I very much worry that we are being asked to bind ourselves to something over which we do not have control. Even though electoral events should stand alone, I am not convinced that amendment 80 is a reasonable way of achieving that.

Tom Arthur

On amendment 96, which concerns polling day being on a Saturday, I share Adam Tomkins’s concerns about the apparent lack of consultation. As someone who grew up in East Renfrewshire and who represents part of it, I am particularly conscious that polling day being on a Saturday could create a barrier to voting among certain communities, particularly the Jewish community, and that it could prevent people who are politically engaged and involved across all parties from participating in election day activities. That is another potential barrier.

There would have to be detailed consideration, engagement and consultation before that measure could be taken any further.

On amendments 97 and 98, I have not sensed any particular demand for people to be able to come to polling stations before 7 am or after 10 pm. I note that there is no reference to when a count should take place. If a count were to take place on a Sunday, following a Saturday referendum, there would be implications for the Western Isles in particular. Again, I have the sense that amendment 96 was drafted without fully considering all our communities across Scotland. There is also the issue of the count being delayed by a further hour if polling continues until 11 pm, which means that staff at the count and Police Scotland staff would face delays in concluding their day’s work. For those reasons, I am unable to support James Kelly’s amendments 96 to 98.

Alex Rowley

I take on board the point that Patrick Harvie made about amendment 80. However, I think that the principle of the amendment is right and I am happy to support it.

James Kelly said that amendment 96 is a probing amendment. I think that is right. I go to mass on a Sunday morning, but if there was voting on a Sunday, that would not prevent me from going to mass and voting.

The irony is that the bill is really about holding a Scottish independence referendum. As we know, the independence referendum had one of the highest turnouts, certainly in my lifetime. However, when we are talking about referendums and elections, we need to think about why turnout is generally poor across Scotland. That is the point that James Kelly is probing with the amendments. It is the same for elections, by-elections and council elections. In Hong Kong last week, there was a 70-odd per cent turnout for local authority elections—although that is because of the current difficulties there. There are genuine issues.

I am happy to support amendment 80 in the name of Adam Tomkins. Given that James Kelly’s amendments 96 to 98 are probing amendments, I hope that he will decide not to move them today.

Alexander Burnett

I think that Adam Tomkins’s objection to amendment 96 on religious grounds is sufficient, but I also support John Mason’s criticism that there has not been enough consultation. I repeat some of the comments made by Tom Arthur on James Kelly’s amendments 96 to 98 in respect of two aspects: polling station staff and the problems that would arise if hours were extended, particularly for small, rural polling stations, which, as I know, already struggle to get staff; and the impact on the timing of the count of changing the day of voting, particularly where the staff are predominantly council employees who could end up working Saturday night and Sunday.

Michael Russell

I will split the amendments into two sets. On amendment 80, I agree that there should not be a conflict of dates and I am happy to look for a solution to that issue. However, amendment 80 does not provide such a solution; rather, as Mr Tomkins said, it gives the “force”, but not the answer. What would happen if, after a referendum date were chosen, an unscheduled election was set for the same date? The current UK Tory Government specialises in unscheduled elections. The amendment does not answer the question how that issue would be resolved. If Mr Tomkins decided to withdraw amendment 80, I would be happy to discuss with him how we could find a solution to the problem in the bill, rather than just postulating what the problem is and saying that there should be a different outcome but not what that proper outcome is.

I take the issue seriously and I want to achieve a result, but amendment 80 will not produce the result that we need. However, we have time to address that at stage 3.

Mr Kelly’s amendments are of a different quality. First, I will address Alex Rowley’s point about turnout. Turnout is a product of engagement. There is no doubt about that—that is what takes place. It is engagement with politics that produces turnout, rather than the arrangements for voting, although clearly if the arrangements create barriers, they should be changed. There is no evidence that Thursday polling is a barrier for voters—people have been going to the polls on a Thursday for more than 80 years. There is no indication that there is something about a Thursday that prevents people turning out and that moving to a Saturday would help people to do so.

Amendment 96 is not a probing amendment; it is a restricting amendment. There is in fact no requirement in the bill—or in any other Scottish electoral legislation—for polling day to be a Thursday. It can be varied. The bill before us is the framework bill, so if you are going to introduce another bill, do not tie the framework down to something for which there is no evidence. You can bring in a bill with a specification for a particular day—that is perfectly possible to do. Amendment 96 is therefore not necessary.

I share the concern that an amendment could be introduced that has considerable implications for one community, just as having polling on a Friday would have implications for another community and having it on a Sunday would have implications for at least part of another community. That should have been thought about. Amendment 96 is the wrong amendment, done in the wrong way, and it should not be proceeded with.

We should then consider what effect polling hours have. All of us who are working politicians—if those two words can go together—know that the pressure lies at different times of the day, not at the opening or closing of the poll. In my experience, the time between 7 am and 8 am is the quietest time, and by half past 9 things have significantly quietened down. If we could add an extra hour in the middle of the day—which is probably not a concept that we could work with—we would be able to do something, but there would not be an effect from extending the hours as proposed, which would increase the cost, but for a very minor arrangement.

There are arguments to say that we should have multiple-day polling. We had multiple-day polling at one stage in these islands, and it would be possible to consider that, but the solution is not to extend in that way. The bill includes provision to cover people who are in a queue at the polling station at 10 pm. If there is any difficulty at the end of the day, that is already taken care of. If someone is at the polling station before 10 pm and they still wish to cast their vote, they can do so. There is no cut-off moment.

I am happy for the Government to consider, with Mr Tomkins, the issue that he raises in amendment 80. The amendment does not provide what we need, but we might be able to provide it. As for the other amendments, one of them is thoughtless and wrong, and another does not produce the effect that it is apparently meant to produce, so I would not support it.

Adam Tomkins

I am trying to think how one might elegantly draft a provision that could provide an additional hour in the middle of a polling day. That would be something of a challenge between now and stage 3. I hear the force of the criticisms that have been levelled at the effect—but not the intention—of amendment 80. Amendment 80 was lodged in good faith to seek to give effect to an important recommendation of the Electoral Commission, which was endorsed by the committee in its stage 1 report, that referendums should be stand-alone events and should not be confused with other electoral events. However, I hear the force of the criticisms and I am happy to seek to work with the cabinet secretary and indeed others between now and stage 3 to see if we can achieve that result through better means. I will therefore seek to withdraw amendment 80 with the expectation that we will revisit the issue, in one form or another, at stage 3. I have nothing further to say about the other amendments in the group.

Amendment 80, by agreement, withdrawn.

Amendments 96 to 98 not moved.

Amendment 26 moved—[Michael Russell]—and agreed to.

Schedule 2, as amended, agreed to.

Section 13 agreed to.

Schedule 3—Campaign rules

The Convener

Amendment 99, in the name of Alex Rowley, is grouped with amendments 100 to 103.

Alex Rowley

My intention is to withdraw my amendments.

The Convener

You do not want to speak to them—you are saying that you will not move them.

Alex Rowley

No, I will not move them.

Amendments 99 and 100 not moved.

Jackie Baillie

I continue my fixation on timing, convener. The purpose of amendment 101 is straightforward: it specifies that the “application period” for campaigners should be set at eight weeks instead of the four-week period that is currently in the bill. Committee members will, I hope, have spotted a theme to my amendments—it is all about giving plenty of time for the process, because I do not believe that democracy should be rushed. Amendment 101 allows more time for campaigners to register. A referendum will, undoubtedly, be about serious matters. In my view, the process should not be rushed.

I move amendment 101.

James Kelly

Amendment 102 seeks to allow the granting of £100,000 to designated organisations, subject to any conditions that are set out by the Electoral Commission. The amendment seeks to ensure that any organisation that is so designated has proper access to a campaign.

Some campaign organisations are not as well funded as others and might not have a proper voice or platform in a campaign without that funding. Amendment 102 seeks to give voice to all views in any referendum campaign and ensure that organisations are able to communicate their views to voters.

Gordon MacDonald

I am not convinced that amendment 102 is required. The bill already allows for the normal level of support for participating organisations—they get campaign broadcasts, free use of rooms for public meetings and free mailings to every single voter. The cost of the free mailings alone during the Scottish independence referendum was £1.6 million. I think that that is adequate support.

We are talking about important issues that will engage voters, and I would imagine that any side in a referendum that has engaged voters would have no problems raising the necessary funds for campaigning.

Patrick Harvie

I am not sure that Jackie Baillie is going to convince me on any of her amendments—I am sorry about that, Jackie.

The application period for a permitted participant to apply to become a designated body seems to be such a minor aspect of the process that I do not see a great need to extend it. Allowing a month for established organisations to go through the application process seems entirely adequate to me. I am not aware of any problems in the past that have been caused by there not being sufficient time for that.

On amendment 102, the Green Party supports the public funding of our democratic process. We think that it would be far better to have a modest and capped level of public funding of the democratic process than to have the super-rich in our society donate large amounts of money, either as individuals or as businesses, to political parties or campaign bodies. People should have an equal vote. The countries that are, in my view, more successful pluralistic, multiparty democracies have some degree of public funding, which is absent in Scotland and the United Kingdom.

That said, if James Kelly has a chance to wind up—I do not know whether he will—I would ask him to explain what discussions he has had with interested bodies. I would like to explore why an amendment containing the proposed level of funding has been lodged at this stage, and whether he proposes that the same approach should be taken in relation to elections as well as referendums. I do not know whether he is able to intervene or has to wait for his chance to wind up.

The Convener

James Kelly is fully entitled to intervene, but he will have no winding-up opportunity.

James Kelly

In that case, to help the discussion, may I intervene?

Patrick Harvie

I would be grateful.

James Kelly

Patrick Harvie mentioned campaigns being funded by rich people and organisations. Disaffected people and groups do not have the same facility.

My experience as a campaigner leads me to believe that it is important that designated organisations in any referendum should receive an appropriate level of funding. I would be open to discussing what that level of funding should be and to considering the general issue of funding around elections.

Patrick Harvie

I am grateful to James Kelly for that intervention. My instinct would be to be willing to discuss alternative approaches to the issue ahead of stage 3. I do not know whether there is any chance that the proposal would get majority support, but if we were to do something along the lines that have been suggested, we should involve permitted participants, not just designated organisations. I think that we should consider the idea in future, instead of agreeing to amendment 102.

Michael Russell

Amendment 101 would double the period of time for organisations to apply for designation. Whatever one’s view of the referendum in 2014, the time limit that is set out in the bill operated well in 2014. There was no evidence of stakeholders requesting the change that Jackie Baillie has proposed. I do not think that there is a case for change, and I ask the committee to reject amendment 101.

At stage 1, the committee rejected the suggestion that the bill be amended to include a provision on public funding of campaign groups, as there was not enough evidence to support that change. I am not inherently against the idea. I agree with Patrick Harvie that supporting democracy is an important thing to do, and the more money—dark money, in particular—pours into democracy, the more we should be concerned. Later, we will have the opportunity to consider the maximum level of fines that the Electoral Commission can impose.

There has been no indication that James Kelly has taken any evidence on what the level of funding should be. That being the case, I do not think that the proposal has been thought out or thought through, and it goes against the committee’s report. Therefore, I think that the balance is against supporting amendment 102 at this stage.

Amendment 101, by agreement, withdrawn.

Amendment 102 not moved.

The Convener

Amendment 27, in the name of the cabinet secretary, is grouped with amendment 28.

Michael Russell

In its stage 1 report, the committee supported the Electoral Commission’s recommendation that the reasonable costs of producing campaign material in accessible formats for people with disabilities should not be included within spending limits. In line with the Scottish Government’s aim of encouraging people with disabilities to participate in elections and referendums, as well as other political activity, I am delighted to accept that recommendation.

Amendment 27 exempts any costs that might arise from making reasonable adjustments so that a disabled person can undertake their role, in a paid or voluntary capacity, from counting towards a campaign organisation’s expenditure limit. Similarly, it exempts costs associated with providing campaign materials or supporting campaigning in ways that are more accessible to people with disabilities. An example might be providing a British Sign Language translator when talking to a group of voters that includes people whose first or preferred language is BSL.

The intention is to encourage campaign organisations to involve disabled people in their campaigning and to make that campaigning more accessible to people with disabilities without those organisations having to be concerned about exceeding the campaign expenditure limit.

Amendment 28 exempts reasonable costs associated with providing security for the protection of people who attend rallies or other public events in connection with a referendum. It, too, flows from a recommendation of the Electoral Commission.

Although protection of the public is a police matter, the police cannot be everywhere at once. During a referendum campaign, multiple events take place in a short timescale, and that can stretch the resources that are available. The intention is not to allow campaigners to employ security staff to stifle legitimate opposition, but to ensure that opposition does not endanger the safety of those who are taking part. In line with that, when a campaign organisation wants to make use of the proposed exemption, the expenditure will have to be reasonable. The Electoral Commission has oversight of campaign expenditure.

I hope that the committee will agree that our proposal is a measured response to threats of violence at political events and that the safety of the public should not be affected by campaign expenditure limits.

Amendments 27 and 28 represent positive ways of ensuring that referendums that are held under the proposed framework—I stress that it is a framework—are inclusive as well as safe, and I commend them to the committee.

I move amendment 27.

John Mason

I have a minor point. I very much welcome the theme of this debate and where we are trying to go with it; I just wonder whether there is any opportunity for abuse. I might produce material in a larger font, with the intention of making it available to partially sighted people, but that could be abused, in that everybody else could read it as well and it could be a way of getting around the limits. Will there be a way of controlling any such potential abuse?

The Convener

I will let the cabinet secretary deal with that in his summing up.

Adam Tomkins

I warmly welcome amendment 27 and have no questions or comments about it.

Amendment 28 puzzles me a little and I want to make sure that I have fully understood it, so I have a few questions. First, where is this coming from? Is it something that the Electoral Commission or Police Scotland suggested? I may be wrong, but I do not recall taking any evidence on it.

Secondly, cabinet secretary, the purpose and effect notes that you very kindly shared with the committee—for which we thank you—say that amendment 28 would mean that the cost of providing reasonable additional security, over and above what is provided by the police, will not count as referendum expenditure. They go on to say:

“The organisers will still have to fund the cost of the security arrangements but that cost will not count towards their expenditure limit”.

How do we know that that would always be the case? What guarantees are there that the bill for additional security costs would be footed by campaigners or organisations, rather than by the taxpayer or the police? If that is guaranteed somewhere in law, where is it, and how does amendment 28 tie in with it? I want to make sure that the dots have been appropriately joined.

Michael Russell

The answer to both those points lies in the word “reasonable” in amendments 27 and 28. Amendment 27 talks about

“reasonable expenses incurred that are reasonably attributable to individuals’ disability”.

There is a judgment to be made about this: I am sure that, as in Mr Mason’s example, if there were an attempt to be unreasonable, that would be a matter for the commission.

Amendment 28 talks about

“reasonable expenses incurred in providing for the protection of persons”.

As I understand it, the issue arises from the commission’s recommendation concerning the 2016 referendum, when there were, of course, issues of security and violence. There is no intention that the cost would be met by the public; this is about costs that the campaign meets and then has to declare. It is about the limits of those costs, and the word “reasonable” applies. I hope that that addresses both points.

The Convener

Okay: that was an opportunity for clarity, rather than a winding-up speech.

Patrick Harvie

I welcome both amendments. Amendment 27 says that the costs of providing material in Braille or of providing sign language interpreters at campaign events will not be covered as part of the calculation of referendum expenses. Was the same consideration given to the translation of material into minority languages that do not relate to disability? Given that, as I hope, we are looking to extend the franchise on the basis of residency rather than nationality, there will be parts of the country with large numbers of people who are entitled to vote but whose first language is not English. Is that already covered somewhere? Has the Government considered dealing with the issue in the same way as translation for the purposes of disability?

Michael Russell

I do not think that it is covered elsewhere, and it is a good point. I can immediately think of circumstances in which the bulk of the material in some constituencies might not need to be translated, and therefore there would be an offsetting cost in relation to material that is not produced. I am happy to look at the issue, but it has not been considered so far.

The Convener

No one else wants to contribute. Do you want to wind up, cabinet secretary?

Michael Russell

No.

Amendment 27 agreed to.

Amendment 28 moved—[Michael Russell].

The Convener

The question is, that amendment 28 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Arthur, Tom (Renfrewshire South) (SNP)
Bibby, Neil (West Scotland) (Lab)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Harvie, Patrick (Glasgow) (Green)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)

Abstentions

Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 8, Against 0, Abstentions 3.

Amendment 28 agreed to.

Amendment 103 not moved.

Amendment 29 moved—[Michael Russell]—and agreed to.

The Convener

Amendment 104, in the name of Jackie Baillie, is grouped with amendment 105.

Jackie Baillie

This time, I want to shorten the timescales available. The purpose of the amendments is very straightforward. Amendment 104 specifies that returns that require an auditor’s report must be submitted to the Electoral Commission within three months of the day on which the referendum took place. The bill provides for a period of six months, which I believe is too long. Amendment 105 specifies that returns that do not require an auditor’s report should be submitted within one month, rather than three months, which is the period that is currently in the bill.

I have suggested those periods because financial probity in any election or referendum is essential, and minds need to be focused on making financial returns as soon as possible. Unfortunately, we have seen various investigations into misconduct—I am thinking of the vote leave campaign—and it is very important that there is a swift and stringent process to examine electoral spending. It is equally important that we make sure that we retain trust in the referendum outcome, and financial probity is a key part of that process.

I move amendment 104.

Michael Russell

As I explained to the committee in my response to the stage 1 report, the Scottish Government shares the Electoral Commission’s views and has discussed post-poll reporting arrangements with the commission. There are a number of shared concerns—which Jackie Baillie has expressed—and matters to be considered in developing the proposal.

However, the practicality of shortening the timescale for returning audited accounts is an issue. The Scottish Government has agreed with the commission that the issue should be considered further, including by consulting political parties that have experience of making such returns, with a view to developing the best measures to elicit the practicality of the commission’s proposals. Once those further considerations are complete, I expect that the commission will recommend that legislation be amended to reflect the proposals that are agreed with the political parties.

I therefore ask Jackie Baillie not to press amendment 104 or move amendment 105, on the grounds that the Scottish Government and the Electoral Commission are already working on the issue and that it would not be proper or sensible to pre-empt the outcome of those discussions with parties that know how audited accounts are presently prepared.

The intention of the amendments is admirable: the commission, the Scottish Government and Jackie Baillie are as one on the matter. However, there is not yet enough agreement with the political parties to allow the provisions to be fully enacted.

Jackie Baillie

On the basis of the cabinet secretary’s comments, I am happy not to press amendment 104 or move amendment 105. However, I assume from his contribution that the discussions will be completed by stage 3. [Interruption.] Perhaps not. Could the cabinet secretary intervene to tell me what timescale would be appropriate?

Michael Russell

We have no indication yet that the political parties are in a position to agree the matter. We have the small matter of an on-going general election at the moment, so it is not at the top of political parties’ minds. As far as we can see, the bill will not be amended in such a way at stage 3. I think that it would be possible to introduce such a provision in another form in another bill, and we will try to do so, but it cannot be done before stage 3.

Jackie Baillie

I am happy to withdraw amendment 104 now, but I want to engage in further discussion with the cabinet secretary about what assurances there are and what timescales will apply.

Amendment 104, by agreement, withdrawn.

Amendment 105 not moved.

The Convener

The next group is on offences and penalties. Amendment 30, in the name of the cabinet secretary, is grouped with amendments 31, 37, 44, 45, 51, 52, 58 to 60, 62 and 63.

Michael Russell

The amendments make two main changes. First, they change the criminal procedure and, accordingly, the maximum penalties that are attached to certain campaign offences, so that they are no longer restricted to being triable using summary procedure but can also be prosecuted using solemn procedure. Secondly, they increase the maximum monetary penalty that the Electoral Commission can impose from £10,000 to £500,000.

I will explain the rationale for the criminal procedure changes. Currently, a number of campaign offences are triable only by summary procedure, subject to a low maximum penalty of a fine not exceeding level 5 on the standard scale. The Electoral Commission has requested that the criminal procedure that is attached to some of those campaign offences should be changed from summary only to “either way”, to potentially allow a jury trial, with a consequential increase in the associated maximum penalties that are available. The commission is concerned about potential abuses from bodies and from individuals who have significant financial resources.

The changes would apply to: failure to deliver a spending return to the commission; failure to comply with an investigation requirement; failure to supply information to a relevant person; printing or publishing referendum material without details of a printer or publisher; and failure to deliver donation, regulated loan or related transaction reports to the commission.

Part of the concern is that committing an initial offence deliberately may avoid a more serious offence from being detected. For example, failure to make an expenditure return could mask that an organisation had overspent its expenditure limit. Currently, the initial offence has a smaller penalty, so it would be open to a campaigner to avoid the higher penalty by not making a return and risking a relatively small fine. I agree with the Electoral Commission that campaigners should not be allowed to evade discovery of a more serious offence, and the amendments are therefore intended to make committing the evasion offences subject to the higher maximum penalties. That will remove the incentive to avoid making returns or providing information to avoid a higher penalty and generally mean that campaigners take the regime more seriously.

The second change around offences, which was requested by the Electoral Commission, is an increase in the maximum civil monetary penalty that it could impose from £10,000 to £500,000. When I gave evidence to the committee at stage 1, I indicated that I was content to accept the Electoral Commission’s recommendation. Subsequently, the committee’s stage 1 report invited us to respond to the commission’s evidence.

The current position is that the Electoral Commission has powers to impose monetary penalties in relation to campaign offences; the level of maximum penalty varies depending on the criminal procedure that also applies to the offence. The commission has expressed concerns that the current level of fines that are available to it is not a sufficient deterrent. It was concerned that a £10,000 penalty might be seen as “the cost of doing business” to gain an advantage at a referendum. The commission has suggested that a maximum fine of £500,000 would deter breaches of the campaign rules, and has recommended that that change be made.

Amendment 60 would accordingly increase the maximum monetary penalty that the Electoral Commission can impose from £10,000 to £500,000 for campaign offences that could be tried before a jury. Although that is a significant increase, it is commensurate with the penalties that are available to comparable regulators, such as the UK Information Commissioner’s Office. For avoidance of doubt, if agreed, that increase will apply to those offences that I am proposing will move from being tried only by summary procedure to being triable “either way”.

It is important that I make it clear that the commission’s enforcement policy means that it will continue to take a proportionate approach to the increase. However, the change will provide a deterrent to those campaigners who may consider overstepping the mark. We will never know, but would the vote leave campaign have been more careful to stick to the rules during the EU referendum campaign if, instead of a penalty of £61,000, there had been a penalty of £1.5 million?

My aim is to ensure that campaigners stay within the rules; if they overstep them, though, they must be punished accordingly. I think that this increase in the maximum penalty that the commission can apply for campaign offences represents a step change in deterrence and will help to encourage fair campaigning.

I move amendment 30.

Patrick Harvie

I put on record my support for the amendments in this group. The current situation in relation to the level of consequences for those who break the rules is clearly deeply inadequate. Even if we do not see heavy penalties of this kind being applied, if they act as a deterrent, that would be extremely welcome.

We have all seen the misbehaviour that took place during the 2016 EU referendum. We all know that, if that had been an election, it would have been declared illegitimate. There are profound questions about the democratic legitimacy of the outcome given the behaviour of the leave campaigns—plural—and if there is any chance that a more substantial approach to the consequences could prevent such corrupt practices from happening again, we should all welcome it.

Murdo Fraser

I do not object to the amendments and I appreciate that they follow up recommendations made by the Electoral Commission. However, I reiterate a point that I made when the committee took evidence on the matter, which is that, given that such fines are often levied long after the event, the campaign groups involved may have spent all their money or even have been wound up entirely, I struggle to see how it presents a potential deterrent. On the example given by the cabinet secretary, whether the vote leave campaign would have had any resources after the referendum to pay a fine of £1.5 million is a moot point. I am not entirely sure how fining people large sums that they cannot pay, long after the event has occurred, represents a deterrent. The cabinet secretary might have a view on that.

Although I entirely sympathise with what he is trying to achieve and do not disagree with the intent behind the amendments, I am not sure how practical they will be.

Michael Russell

It is a strange approach to the law to say that we should not have penalties because we doubt that people could pay them. We are talking about very serious offences and the penalty should reflect the seriousness of the offence. That is a principle worth supporting. I have no more to add to the points that I have already made. The committee should unanimously endorse the amendments, if it can.

Amendment 30 agreed to

Amendment 31 moved—[Michael Russell]—and agreed to.

The Convener

Amendment 81, in the name of Adam Tomkins, is grouped with amendments 32, 33, 34 and 82.

Adam Tomkins

Amendments 81 and 82 are concerned with what is informally known as the purdah period for referendums. Amendment 81 extends the period governed by purdah rules in relation to publications, principally by Government, to the whole of the referendum period, which we have all agreed would be 10 weeks—it extends the purdah period from 28 days to 10 weeks. The amendment is supported by the Electoral Commission in its stage 2 briefing and is consistent with the evidence that we took at stage 1. Our adviser advised us that there was widespread concern that the 28-day period was too short.

Alan Renwick from the constitution unit at UCL said that, given that campaigns begin well before the purdah period, the rules do not prevent potentially influential Government interventions in a campaign. The Electoral Commission has long been of the view that purdah should apply during the whole of any referendum period. That view has now been adopted by the cross-party Public Administration and Constitutional Affairs Committee in the House of Commons, which has followed the Electoral Commission in recommending that purdah be extended to the full referendum period. That view was also supported by the independent commission on referendums.

There is quite a lot of cross-party evidence and evidence from independent sources, such as the constitution unit’s independent commission on referendums, that these are appropriate steps to take. For those reasons, I commend amendments 81 and 82 to the committee. I will also support amendments 32, 33 and 34 in the name of the cabinet secretary.

I move amendment 81.

Michael Russell

Let me start by addressing amendments 81 and 82 together. The issue was looked at in some detail during the passage of the legislation on the EU referendum, but in a different way. The UK Tory Government tried to restrict even the 28-day period to allow it to undertake certain actions; I am not proposing to do that. The UK Government was defeated on that matter, because people believed 28 days to be a reasonable period for the strict purdah rules to apply to an active Government. I take that position, too, so I ask members to reject amendments 81 and 82.

Ministers, civil servants and public bodies understand the 28-day period. Extending restrictions to apply for the full referendum period, without at least narrowing them, would significantly inhibit the Government and others from conducting normal day-to-day business. An example is the schedule of statistical publications. The UK Statistics Authority requires that statistics be published on certain dates, without ministerial intervention. Amendments 81 and 82 would restrict that.

The length of the pre-poll period was discussed during stage 1 evidence sessions, and there were differing views. The committee acknowledged that uncertainty by deciding not to recommend an extended pre-poll period. A 28-day period—with one addition, to which I will come in a moment—is an acceptable compromise.

Some referendums, such as the 2016 EU referendum and the 2014 independence referendum, have involved wide-ranging arguments that have cut across a vast number of policy areas. Restrictions in all those areas for a 10-week period would cause significant issues in relation to the normal work of ministers and public bodies.

There is a difficulty in finding the right balance. Administrative restrictions are already in place for some actions. For example, members of the Scottish Parliament will know that there is a longer period than four weeks in which there are restrictions on issuing newsletters and information to constituents. I expect that that is exactly what would happen in any referendum, through regulations that the Scottish Parliament makes.

The “Fifth Report of the Committee on Standards in Public Life” acknowledges that it is very difficult, if not impossible, for the Government of the day

“to offer purely objective and factual information”

for that length of time. Governments should certainly remain neutral, but setting a 10-week regulated period does much more than that: it inhibits and stops Government actions. Even those who have pressed for longer restrictions have argued that those should apply to a narrower range of materials and that some public bodies should perhaps be exempt. However, Mr Tomkins’s amendment 81 would not allow for that. It is a wide-ranging amendment that would damage the process of Government business. There are other ways in which voluntary restrictions have already been put in place and are working in such circumstances.

However, there is the possibility of further restrictions and exemptions. In its submission in response to the committee’s call for evidence, the Scottish Parliamentary Corporate Body suggested that the exemption for publications in the normal course of parliamentary business should be brought up to date and future proofed. The corporate body’s concern was that the bill refers only to the Scottish Parliament’s official website and does not mention other parliamentary websites, such as Scottish Parliament TV or official Facebook and YouTube sites, nor does it mention social media use, such as the Parliament’s Twitter account. The committee supported the corporate body’s proposed changes to bring the exemptions up to date, and we lodged amendment 32 to allow that to happen. The amendment will exempt from the pre-poll restrictions all material that is published on all official Parliament websites and online platforms that are controlled by the corporate body. We discussed the proposed amendment with the corporate body, and I am content that amendment 32 addresses its concerns.

In its stage 1 report, the committee recommended that electoral registration officers should also be exempt from restrictions on central and local government publishing promotional material. Given that recommendation, I have lodged an amendment to exempt electoral registration officers from the pre-poll publication restrictions that are set out in schedule 3. Paragraph 27 of schedule 3 to the bill sets out the restrictions on the publication of promotional material by central and local government in the 28 days before the poll. It includes a list of bodies that are exempted from the restrictions, including the designated campaign umbrella organisations, the Electoral Commission and the chief counting officer or any other counting officer, but it does not include electoral registration officers. The 28-day period before the poll includes a number of deadlines for important processes, so electoral registration officers should, in the interest of voters, be able to publish appropriate information.

I ask the committee to accept amendments 33 and 34, which are complemented by amendment 66, which we will discuss later. I ask the committee to reject amendments 81 and 82, because they would make it, in essence, impossible for normal public business to be carried out.

Patrick Harvie

Adam Tomkins’s proposal, if it were agreed, would result in an unreasonably broad, extended purdah period. Paragraph 27(1)(d) of schedule 3, for example, states that the restriction covers material that

“is designed to encourage voting in the referendum”,

and paragraph 27(2)(c) includes public authorities that we expect to have a role in political education and in encouraging voter turnout, particularly among young people, as we debated with regard to elsewhere in the bill. Adam Tomkins’s proposal would, potentially, lead to an extended period in which that voter education activity, and not just the business of Government, would be restricted. As such, the amendments from Adam Tomkins go too far in that regard, and I will not support them.

The Convener

As nobody else wishes to contribute, I call on Adam Tomkins to wind up, and to press or withdraw amendment 81.

Adam Tomkins

We all accept that there should be a period of purdah; that is, a period in which Government cannot use its ordinary resources and in which—as Mr Russell referred to—the ordinary business of Government is interfered with in the interests of voters and of voter confidence in the impartiality and accuracy of the process. The argument is about how long that period of interference should last. Should it last for only the last four weeks of a campaign or for the last ten weeks of a campaign?

When trying to reach a conclusion on such an issue, the right thing to do is not to put the interests of Government first, which is the force of what Mr Russell said. The right thing to do is to put the interests of voters first. The organisation that we have in the United Kingdom that represents the interests of voters is the Electoral Commission. It says that there are significant issues of voter confidence, specifically in referendum campaigns, where

“referendum campaigners ... must work within statutory spending limits”

for the whole of the regulated period, but where

“government and public authorities may spend potentially significant amounts of public money”

throughout that period, other than in the last four weeks. It is for that reason—of maintaining voter confidence—that the Electoral Commission has recommended that the purdah rules should apply during the whole of the referendum period, and not only for the last four weeks. I accept that that will be inconvenient for Government ministers. However, when one weighs the inconvenience to Government ministers against the interests of voter confidence in a referendum on what is likely to be a very important subject—otherwise, why would it be put to a referendum—I know where I would prefer the balance to come down.

My amendment gives effect—simply, straightforwardly and without unnecessary complication—to a recommendation of the Electoral Commission that has been endorsed nationally and internationally by both parliamentary committees and international commissions that have considered best practice with regard to referendums. For that reason, I will press amendment 81.

The Convener

The question is, that amendment 81 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Bibby, Neil (West Scotland) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Tomkins, Adam (Glasgow) (Con)

Against

Arthur, Tom (Renfrewshire South) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Harvie, Patrick (Glasgow) (Green)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 81 disagreed to.

Amendments 32 to 34 moved—[Michael Russell]—and agreed to.

Amendment 82 not moved.

The Convener

Amendment 83, in the name of Patrick Harvie, is grouped with amendments 35, 36, 84 and 38.

Patrick Harvie

Amendment 83 is on the part of schedule 3 that is about publication by anybody, not just public bodies or Government. We discussed it at stage 1, and we heard a range of views in evidence that were centred around the fact that our current arrangements are not adequate for the digital age that we live in. However, those views have probably not alighted on an absolute solution.

I do not imagine, and I certainly do not hope, that whatever happens with the amendments that we are discussing today, this will be the final word on the issue. We will need to continue to revisit the subject of how we regulate campaigning in the online space in relation to electoral law and referendums.

The fact that we sometimes discussed the subject using the shorthand title of “digital imprints” symbolises that we are still thinking about this form of regulation in the way that we did when campaigning was done with physical leaflets. They still exist, and we all still expect them to have an imprint on them. Campaign information that goes through people’s letterboxes or is handed to people on the streets is expected to be transparent about who has published it. That transparency is not there in relation to a great deal of online campaigning. Online campaigning blurs the distinction between what comes from campaign bodies and what is merely public discussion and debate.

Public discussion, particularly on social media, is part of that blurred space. It is publication. It is not the equivalent of folk chatting to their mates around the water cooler or in the pub. It is publication and it can reach significant numbers of people. Publication on social media by an individual whose own follower base on that platform is not massive can still be boosted by others and achieve a substantial degree of reach. It can be as powerful a campaign tool as a funded, paid-for, commercial publication from a campaign body or others. I think, therefore, that the requirements for transparency still exist. They need to be applied differently in relation to individuals who are using social media purely as individuals, but they need to be applied in some way.

I have therefore lodged an amendment that is different to the cabinet secretary’s proposal. I will explain first why I do not support the cabinet secretary’s amendment 35, which would simply exempt from the requirement to provide transparency information material that

“expresses the individual’s personal opinion”

and

“is published on the individual’s own behalf on a non-commercial basis.”

I fear that that would exempt campaigning material that is being used by organised, well-funded campaigners. Even if it is not published by them, they are using it in an organic sense. If it published by an individual but used by an organisation, it is in that grey area. I fear that amendment 35 would, therefore, go too far and exempt too much.

I have suggested an additional category of online publication, including material that is communicated by social media accounts that are controlled by individuals who are campaigners, either by being members of or donors to permitted participant or designated organisation bodies. Effectively, if people who are part of an organised campaign are using social media to campaign, there is a reasonable expectation that they should do the same thing in providing information about who they are and who is publishing material as they would if they were putting out flyers around their community. People do not always obey the law when they are printing such material, but they are supposed to, and so we should have that same level of requirement.

My amendment would not apply to individuals who are unconnected with campaign bodies and are merely using social media to discuss the issues. That will require some consideration in future. My amendment would not cover individuals who are using social media or online publication purely to discuss the issues, but it would apply to those who are connected to campaign bodies and publishing on social media. It would also apply to those who set up stand-alone campaign websites, for example, that are not part of a social media platform.

I will move my amendment in the hope that, whatever happens with any of the amendments in the group, we will continue to be open to debating, refining and improving the way in which we regulate campaigning in the online space. I do not think that any of us—the Government or myself—would claim that the bill in front of us can be the final word on the issue.

I move amendment 83.

Michael Russell

Patrick Harvie has set out his case well, and I very much respect where he is coming from. I think that we both accept that this is a difficult area that we are all trying to get right; it is an issue that every democracy is having to deal with. We are moving into unknown territory and trying to ensure that we continue to regulate electoral activities in the best and most even-handed way possible, while recognising that new problems are occurring every day.

I turn first to the Government amendments 35, 36 and 38, which relate to the requirement that referendum material must have an imprint to show who is promoting and publishing it. The committee, in its stage 1 report, recommended

“that the Scottish Government gives careful consideration to ... recommendations of the Electoral Commission in relation to the scope of the imprint requirement”.

The Scottish Government’s policy on online materials has always been intended to cover campaign material rather than individual views, which is an important distinction. I think that all parties recognise that it is important for democratic debate that voters are able to express and discuss their viewpoints on the issues that a referendum raises, and that campaign materials are clearly labelled and identifiable. Our discussions with the Electoral Commission have been about how best to achieve that.

We have been working closely with the Electoral Commission for some time with the aim of ensuring that an individual who is not working on behalf of a campaigning organisation and who is not paying commercially to promote their message will be able to share their views online freely without having to add an imprint. Together, we have looked at how other Governments have dealt with and responded to similar issues, with a particular focus on the Canadian provisions on the exemption of personal views.

Amendment 35 is the result of our deliberations. It will exempt from the requirement to include an imprint any material that

“expresses the individual’s personal opinion, and ... is published on the individual’s own behalf on a non-commercial basis.”

The amendment will ensure that an individual who is discussing their individual views with friends or strangers online does not have to add an imprint. However, an individual who decides to pass on campaign literature relating to the referendum, unless that material is being used to illustrate a particular point of view, must add an imprint, as they will have moved—

Patrick Harvie

Can the cabinet secretary confirm precisely what he means in his last point about passing on material that has been produced by a campaign body? If, for example, a graphic was produced by a campaign body and was passed on without an imprint, and an individual chose to post a tweet, for example, that included their own personal opinion in the text and the graphic from a campaign body, it seems that that would be exempted, because the publication is the tweet. The publication would be expressing

“the individual’s personal opinion”

and it would be

“published on the individual’s own behalf on a non-commercial basis.”

It seems that that would open up a route for a campaign body that wishes to hide the true origin of its publications to allow others to promote and boost its material without any kind of transparency information being attached.

Michael Russell

It should not do so, but if we were to err in the other direction and say that nobody could pass on a piece of campaign material on which they wished to comment—as people do on social media—without in actual fact saying that they are part of that campaign or identifying themselves as such, that would be going very far into the restriction of individual liberty. This is going to be a fluid area, but I think that we would want to err on the side of individuals being able to express their opinion and to illustrate that opinion, which is part of the common parlance and grammar of social media.

The imprint would have to be added if the individual was part of a campaign organisation. Similarly, any individual who is sponsored or supported by an organisation will not be allowed to publish material without an imprint, due to that sponsorship. There is a slight parallel with advertising rules in the way that people move from being individuals to influencers. Drawing that line is difficult, but it is drawn in the commercial sphere.

In addition, any individual who is also a registered campaigner, or who spent money to create campaign materials, will be required to include an imprint.

The Electoral Commission is broadly content that the proposed amendments will provide clarity on who will be required to provide an imprint and will address concerns about unregulated campaigning. We continue to discuss that with the commission, Mr Harvie and others, and we might refine the provisions at stage 3.

As part of those changes, my amendment 36 removes the “reasonably practicable” exemption that is currently in the bill. The committee’s stage 1 report supported the recommendation of the Electoral Commission that the bill be amended to remove the words,

“unless it is not reasonably practical to include the details”,

from the requirement to include an imprint. The Electoral Commission had expressed concerns that if the “reasonably practicable” exception were retained, that would hamper its work with social media companies on technical solutions to online imprints. Social media companies might use such an exemption as a defence for not providing technical solutions. I am happy to accept the recommendation and have lodged amendment 35—the “personal opinion” exemption—and amendment 36, which would remove the “reasonably practicable” exemption.

Amendment 38 simply makes clear that the use of the term “address”, which is required to be provided in the imprint, means a physical postal address and not an email address. That is the position taken for printed material at other elections and in the 2014 referendum for online materials.

Patrick Harvie

On the point about postal addresses, will the cabinet secretary confirm that that does not necessarily mean the individual’s domestic residential address and that it could be the postal address of an organisation that they are involved with?

Michael Russell

It must be an address that is accessible and available, and contacting which would be the equivalent of contacting the individual. That is a slight grey area.

At the request of the Electoral Commission, I lodged amendment 38, which clarifies that a postal address is required. That will identify those who are involved by linking them to a physical location, rather than to an email address, which would mean that they could be anywhere in the world.

Taken together, amendments 35, 36 and 38 will strengthen the rules on online campaigning. However, I am well aware that it is an evolving area. Although I share Mr Harvie’s concerns, I have difficulties with his amendments 83 and 84. I offer to continue to work with him to get the amendments to a place in which I feel that it is safe to support them.

As amendments 83 and 84 capture social media material, redesigned versions could possibly work alongside the Government amendments that apply to a wider range of non-printed material. It might be possible to capture material from all registered permitted participants and relevant donors to those campaigns. However, there are legal difficulties around applying controls to any registered party member and any party donor, as proposed paragraph (7B)(b) of amendment 84 would do. The Scotland Act 1998 reserves the registration and funding of political parties, which is a difficulty. I am happy to commit to discuss with Mr Harvie how we might move on to achieve a legally operable series of amendments.

I add that the Scottish Government’s proposed change to make the offence of not providing an imprint triable by solemn procedure with a jury, with an attendant increase in the penalties that are attached to the offence, taken together with the increased civil sanction powers of the Electoral Commission, should significantly add to the deterrent for campaigners who breach imprint rules, without deterring individuals from participating. That is the balance that must be struck.

The measures are important. I ask Patrick Harvie not to press his amendments, and I hope that we can find a better solution by stage 3 for what he wants to achieve. I commend amendments 35, 36 and 38 to the committee.

Patrick Harvie

I realise that I should have noted amendment 36 in my opening remarks. I welcome the Government’s decision to lodge an amendment to remove the “reasonably practicable” exemption. If the Government had not done so, I would have, because the committee agreed to it. Therefore, I am grateful that the cabinet secretary lodged amendment 36.

I do not want to go over ground that we have already touched on, but one of the issues that the cabinet secretary’s remarks did not quite engage with is how we can distinguish those who are active campaigners but also publish on social media in their capacity as individuals. Where is the line between the individual and their identity as a campaigner? For example, there would be a grey area if a wealthy individual personally funded a campaign body but used their individual social media accounts to target social media posts using information that they gained through being a campaigner. I fear that the Government’s approach would exempt publication that was carried out in that way, whereas a common-sense approach—if we could achieve it—would regulate such publication.

I will not pretend that any of us have our approaches to the issue in a state of perfection, but I will press amendment 83, just to gauge the level of support—if any—that exists for it. Even if it is voted down, I hope that the Government will still be willing to discuss with me alternative approaches at stage 3.

The Convener

The question is, that amendment 83 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Bibby, Neil (West Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Rowley, Alex (Mid Scotland and Fife) (Lab)

Against

Arthur, Tom (Renfrewshire South) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

Abstentions

Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 3, Against 5, Abstentions 3.

Amendment 83 not agreed to.

Amendment 35 moved—[Michael Russell].

The Convener

The question is, that amendment 35 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Arthur, Tom (Renfrewshire South) (SNP)
Bibby, Neil (West Scotland) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Tomkins, Adam (Glasgow) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)

Abstentions

Harvie, Patrick (Glasgow) (Green)

The Convener

The result of the division is: For 10, Against 1, Abstentions 0.

Amendment 35 agreed to.

Amendment 36 moved—[Michael Russell]—and agreed to.

Amendment 84 not moved.

Amendments 37 and 38 moved—[Michael Russell]—and agreed to.

The Convener

I propose that we take a five-minute break.

The Convener

Amendment 39, in the name of the cabinet secretary, is grouped with amendments 40, 41 and 46 to 48.

Michael Russell

I am conscious of the time, so I shall be as brief as I can.

The committee asked the Scottish Government to explain in more detail why the proposed reporting requirements for referendums are different from the requirements in general elections, for which weekly reports are required. I have looked at the matter and talked to the Electoral Commission about it. We have agreed that a move to weekly reporting could be to the detriment of smaller campaigners. Imposing the weekly reporting requirements that apply to political parties would add an additional burden for smaller campaigners. Political parties and most third-party campaigners are used to having to report weekly, but some campaigners may not be used to it.

Having heard the commission’s concerns and its advice that the four-week reporting periods at the 2014 referendum worked well, I am not convinced that moving to a weekly reporting period for donations and regulated transactions would be in the best interests of an inclusive referendum. I am therefore not proposing to introduce a weekly reporting requirement.

However, with the move to a default referendum period of 10 weeks, as proposed and agreed earlier, a move to more frequent reporting is needed. The amendments require that, where the 10-week referendum period applies, it should be split into three reporting periods: the first would start on the first day of the referendum period and end after two weeks; a second period, of four weeks, would run; and a final four-week period would run. That timing would work for a default 10-week referendum period. If the period were to be changed by legislation providing for a particular referendum, revised reporting periods would be required as a consequential amendment, but the principle would apply with four-week periods as the default.

I move amendment 39.

Amendment 39 agreed to.

Amendments 40 to 52 moved—[Michael Russell]—and agreed to.

Schedule 3, as amended, agreed to.

Section 14 agreed to.

Schedule 4—Campaign rules: investigatory powers of the Electoral Commission

The Convener

Amendment 53, in the name of the cabinet secretary, is grouped with amendments 54 to 57.

Michael Russell

There was concern that the bill’s provisions limit the Electoral Commission’s initial monitoring powers to gather information. The commission asked that its power to obtain information outside an investigation be strengthened to enable it to deal with more compliance issues in real time ahead of a referendum, which would strengthen compliance with, and trust in, the campaign rules.

The commission is currently able to monitor activity by issuing disclosure notices, but it cannot require information from other persons unless it uses its warrant powers. The threshold for that is that there are reasonable grounds to suspect that a specific campaign offence has been committed. That restricts the commission’s ability to respond rapidly to emerging situations and provide appropriate and timely advice and interventions. It will be in everyone’s interest if potential compliance issues can be addressed at an early stage.

As well as requesting a broadening of the categories of organisation or individual, the commission expressed concern that the scope of the disclosure order power is confined to material about spending and does not cover the full range of situations, such as situations that relate to imprints. Amendment 57 will therefore expand the subjects on which monitoring can be undertaken to include material that is “reasonably required” of a wider range of persons, in relation to a wider range of the commission’s campaign enforcement responsibilities.

It is necessary to take a proportionate approach that gives the Electoral Commission flexibility to respond. I have therefore lodged amendments that will allow disclosure notices to be given to individuals or bodies who are not registered as permitted participants under the campaign rules if the commission has reasonable grounds for believing that they should be permitted participants. The aim is to allow the commission to investigate when it appears to the commission that an individual or body is incurring referendum expenses that take it above the expenses limit.

Amendment 56 will help the commission to identify individuals or bodies who have made a declaration as a permitted participant, where there are questions about whether they are qualifying individuals or bodies—for instance, if they are not based in the UK. The amendment will also help the commission to identify individuals or bodies in relation to whom there is reasonable belief that they have received a “relevant donation” or entered into a “regulated transaction” under the campaign rules when they were not entitled to do so, and individuals or bodies who supply services or goods to campaigners, including those who might have published, printed or promoted material subject to the imprint rules, which require identity and address to be shown—that will allow the commission to confirm who has requested and benefited from the services or goods.

The amendments in the group significantly strengthen the Electoral Commission’s powers to gather information that could lead to a formal investigation and ensure that investigations can be carried out timeously.

I move amendment 53.

Amendment 53 agreed to.

Amendments 54 to 59 moved—[Michael Russell]—and agreed to.

Schedule 4, as amended, agreed to.

Schedule 5—Campaign rules: civil sanctions

Amendments 60 and 61 moved—[Michael Russell]—and agreed to.

Schedule 5, as amended, agreed to.

Section 15 agreed to.

Section 16—Campaign rules: general offences

Amendments 62 and 63 moved—[Michael Russell]—and agreed to.

Section 16, as amended, agreed to.

Sections 17 and 18 agreed to.

Section 19—Referendum agents

Amendment 64 moved—[Michael Russell]—and agreed to.

Section 19, as amended, agreed to.

Sections 20 to 23 agreed to.

Section 24—Code of practice on attendance of observers

Amendment 65 moved—[Michael Russell]—and agreed to.

Section 24, as amended, agreed to.

Section 25—Information for voters

The Convener

Amendment 106, in the name of James Kelly, is grouped with amendment 66.

James Kelly

I will be brief, because I realise that we are pressed for time.

Amendment 106 seeks to increase voter awareness and turnout. It does that through empowering public authorities to do all that they can to support voter registration, to increase voter awareness of voting methods and to take any other relevant action.

Amendment 66 is in a similar vein. It empowers registration officers to take appropriate steps to increase voter awareness and turnout. I support both amendments.

I move amendment 106.

Gordon MacDonald

I have lodged amendment 66 to ensure that electoral registration officers are clear about their role in promoting participation in the run-up to a referendum. We took evidence at stage 1 calling for that aspect to be clarified. We want as many people as possible to engage in any future referendums, no matter what the topic is.

During stage 1, we spoke about increasing registration numbers and turnout among young people and other groups that are statistically less likely to engage in politics in order that they exercise their right to vote. I have commented on the importance of reaching those groups to ensure that everyone can make their voices heard. By making it clear that EROs have a specific duty to promote participation, my intention is to help encourage more people from such groups to register to vote and engage with politics.

Patrick Harvie

I welcome both amendments. We should all try to ensure that public bodies take steps to encourage voter participation and understanding of any referendums that take place. It may be that the Government considers that amendment 106 is too broad. However, I think that it is reasonable, given that it begins with the wording:

“Each ... public authority must take such steps as it considers appropriate”.

There will be some public authorities for which minimal activity would be appropriate, which is reasonable. However, amendment 106 gets closer to ensuring that, for example, local authorities in their educational functions take on the responsibility for increasing voter turnout and participation in referendums.

In 2014, we saw excellent practice and very poor practice. In any future referendum, we would all want best practice to spread everywhere, and amendment 106 makes it more likely that we will achieve that.

Alex Rowley

I am in favour of amendments 106 and 66. As Patrick Harvie said, there is good practice in local authorities to encourage voter registration. However, that good practice is not necessarily shared across the country. Even in the past few weeks in Edinburgh, I have noticed a lot of advertising on lamp posts telling people to sign up to vote. That is good practice, but we need to encourage more of it. I support both amendments.

Michael Russell

I encourage members to support amendment 66. It is important that electoral registration officers’ clear role is recognised and built on, so that they are empowered to do the job that needs to be done—and I do not disagree that the job needs to be done.

I am happy to discuss with Mr Kelly how to focus amendment 106 on where responsibility lies. Counting officers, the Electoral Commission and local authorities already have an obligation to promote registration and participation. Mr Rowley has indicated that some are doing very well and some are not doing as well. We need to focus on that activity. However, the amendment as drafted is far too wide. It lays an obligation on others, including Caledonian MacBrayne, the National Galleries of Scotland and the Royal Botanic Garden Edinburgh. Whatever the definition is, those would not necessarily be the right bodies on which to lay that obligation.

I have listened to Mr Harvie. I am very happy to take the issue away and work with Mr Kelly to focus the amendment—

Adam Tomkins

Will the member take an intervention?

Michael Russell

If I have to, yes.

Adam Tomkins

I want to confirm that I have understood the force of the cabinet secretary’s objection to the breadth of amendment 106, which provides that a

“Scottish public authority must take such steps as it considers appropriate”.

The cabinet secretary cited a number of bodies. None of us thinks that it would be appropriate for CalMac Ferries to spend a great deal of its resource promoting voter registration, although the occasional poster on a ferry probably would not do any harm. I do not understand the point being made that the amendment as drafted is overly broad.

Michael Russell

I do not think that those bodies need to consider the matter. The issue is about who should consider it and who should work on it. Those bodies do not need to consider it, but other bodies do, and I am absolutely in favour of their considering it. In any case, there are obligations on the relevant public authorities.

I am saying, very reasonably, that, if Mr Kelly withdraws amendment 106, I will work with him to get the proposal into a form that can be included in the bill at stage 3, so that we can focus attention on the right bodies.

James Kelly

I thank members for their constructive comments. Patrick Harvie and Alex Rowley made good points about the importance of getting consistent practice across the country, which is what my amendment seeks to achieve.

On balance, I would prefer to press the amendment and seek to include it in the bill today. Because it says, “where appropriate”, it is worded in such a way as to allow public authorities not to take action in cases in which it is deemed inappropriate to do so. Therefore, the amendment is legitimate.

The Convener

The question is, that amendment 106 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Bibby, Neil (West Scotland) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Harvie, Patrick (Glasgow) (Green)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Tomkins, Adam (Glasgow) (Con)

Against

Arthur, Tom (Renfrewshire South) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 106 agreed to.

Section 25, as amended, agreed to.

Section 26 agreed to.

Section 27—Advice

The Convener

Amendment 107, in the name of James Kelly, is in a group on its own.

James Kelly

Having listened carefully to the debate that took place earlier, I am not going to move amendment 107. The starting position for the bill was that the Government sought to impose the wording from the 2014 independence referendum on any future referendum and sideline the Electoral Commission. However, I understand that the cabinet secretary has read the committee’s report and listened to the recommendations, and I note that discussions with the Electoral Commission are on-going. It seems to me that work is still in progress in that regard and that a resolution has not been reached that gives adequate weight to the Electoral Commission’s role. However, I am prepared to allow those discussions to continue ahead of stage 3, and I reserve the right to bring back the amendment at that point.

Amendment 107 not moved.

Section 27 agreed to.

Section 28—Encouraging participation

Amendment 66 moved—[Gordon MacDonald]—and agreed to.

Section 28, as amended, agreed to.

Section 29—Report on the conduct of the referendum

The Convener

Amendment 108, in the name of James Kelly, is grouped with amendment 109.

James Kelly

The amendments seek to ensure that, when the report on the conduct of a referendum is prepared, appropriate weight is given to the role of the Commission for Equality and Human Rights. That body has a key role to play in ensuring that all groups in society can participate in elections and it is important that that role is respected. It should be consulted and regard should be given to its findings when the report on the conduct of a referendum takes place.

I move amendment 108.

Patrick Harvie

I am open to the amendments. However, I ask James Kelly to explain, when he winds up, why he feels that only the Commission for Equality and Human Rights should be included in the amendment rather than, for example, the Children and Young People’s Commissioner or other bodies that represent specific groups. The ethos behind the amendments is good, and I would like us to include something along those lines in the bill, but I am unclear why the amendments refer only to that particular body.

Michael Russell

The point that Mr Harvie makes is the key one. I understand that the Electoral Commission is more than willing to consult many bodies, and, indeed, does so. However, I do not think that anyone would be in favour of prescribing that it should consult with only the Commission for Equality and Human Rights, or even that that body should be preferred in relation to other bodies.

If the Electoral Commission is to be encouraged to consult with more bodies, rather than make a prescription here and now, we should have that discussion with the Electoral Commission, and it could make a decision at that point. I understand that it has not said that it is in favour of the proposal. However, I am not against it consulting with people—quite the reverse; I want it to consult with as many people as possible.

Alex Rowley

Do you agree that there should be something in the bill that requires the Electoral Commission to consult as widely as possible?

Michael Russell

I would have no objection if Mr Kelly had included in his amendment something that said that the Electoral Commission is expected or required to consult a range of bodies. However, as Mr Harvie correctly pointed out, there is a range of other bodies apart from the one that has been specified. Further, the Electoral Commission already consults those bodies. It makes the point that it wants its reports to be comprehensive but not overwhelming, which is why it does not want to spend a lot of time consulting lots of people and quoting them in the reports.

I am happy to have an amendment that says that the Electoral Commission should consult widely, but that already happens—the Electoral Commission assures us that it does that.

James Kelly

I have listened to the contributions, and I think that Patrick Harvie makes relevant points with regard to other bodies. The key point is that the Electoral Commission must give regard to consulting appropriately, and I think that that should be in the bill. I take the point that the wording needs to be correct in that regard. Therefore, I will not press amendment 108, but I will reconsider the issue before stage 3.

Amendment 108, by agreement, withdrawn.

Amendment 109 not moved.

Section 29 agreed to.

Section 30—Reimbursement of Commission’s costs

The Convener

Members will be glad to know that the next group will be the final one this morning, as we might get into a long debate in relation to the next area.

Amendment 67, in the name of Angela Constance, is grouped with amendments 68 and 69.

Angela Constance

Colleagues will recall that, in our stage 1 report, the committee supported the SPCB’s recommendation that the bill should be amended to provide for SPCB funding of the Electoral Commission’s expenditure to be in line with the corporate body’s duty in relation to the other independent bodies’ funds. Amendments 67 to 69 have been lodged to address that point.

Amendment 67 ensures that it is clear that the Electoral Commission can be reimbursed only for expenditure that is properly incurred, and that reimbursement for expenditure that does not relate to its functions under the legislation can be refused.

Amendment 68 clearly limits the amount that the Electoral Commission can be reimbursed to the estimate that has been previously agreed by the SPCB. That ensures that the Electoral Commission and the SPCB know the maximum amount that the Electoral Commission has to spend on its functions under the legislation. However, as I am sure colleagues will appreciate, estimating costs is not always an exact science, and unexpected costs can arise. Therefore, the amendment allows the SPCB to reimburse expenditure by the Electoral Commission that exceeds its agreed estimate, should it deem that appropriate. The SPCB will, of course, be able to draw down funds to cover the Electoral Commission’s expenditure in the same way as for its other expenditure.

Amendment 69 is consequential on amendment 68, and ensures that the cost of the Electoral Commission’s activities under the legislation will not be met from funds that are provided by the Speaker’s Committee of the United Kingdom Parliament.

As I understand it, the on-going funding arrangements between the SPCB and the Electoral Commission are the subject of further discussion in connection with the Scottish Elections (Reform) Bill, and it might therefore be useful or appropriate, depending on what the Parliament approves with regard to that bill, to amend those arrangements at some point in the future. I am assured that the Scottish Government would look to do that using the powers in section 37 of the bill that we are discussing today.

I move amendment 67.

Michael Russell

I thank the SPCB and Angela Constance for raising the issue. The Scottish Government is committed to funding the cost of referendums that are held under the bill. We have engaged with the SPCB and the Electoral Commission to agree how that and day-to-day expenditure that is associated with devolved elections should be taken forward. I understand that the proposed approach has the support of the SPCB and the Electoral Commission.

As Angela Constance has mentioned, the Scottish Government might have to use section 37 of the bill after the Scottish Elections (Reform) Bill has been passed. That depends on the funding arrangements for the Electoral Commission that are contained in that bill, which are still subject to the final agreement of the Parliament.

As all those who are concerned are content with the suggestions, I urge the committee to support the amendments.

Amendment 67 agreed to.

Amendments 68 and 69 moved—[Angela Constance]—and agreed to.

Section 30, as amended, agreed to.

Sections 31 to 35 agreed to.

The Convener

As we will not complete consideration of the bill today, the committee will continue consideration of the bill at its next meeting, which will be on 4 December.

I thank members and the cabinet secretary for their participation.

The Convener (Bruce Crawford)

Good morning. Welcome to the 28th meeting in 2019 of the Finance and Constitution Committee. I remind members to at least set their mobile phones to a mode that will not interfere with proceedings.

The only business on our agenda today is continuation of our scrutiny of the Referendums (Scotland) Bill at stage 2.

I welcome Michael Russell, the Cabinet Secretary for Government Business and Constitutional Relations, and his officials.

Schedule 6—Offences

The Convener

Amendment 85, in the name of Patrick Harvie, is grouped with amendments 86 to 89.

Patrick Harvie (Glasgow) (Green)

Good morning. I am still slightly out of breath from running down the Royal Mile. This group is about false statements, and I wish that it could apply to ScotRail timetables. However, that might be out of scope, so I will stick to the issue of referendums.

While my Surface struggles to life, I remind members of what is said in section 106 of the Representation of the People Act 1983, although I am sure that you are all aware of it. That is the part of the legislation that makes it an offence, during an election, to make false statements about a candidate. It has not been used hugely often, but it has been used in the past, even to the point of overturning an election result and forcing a constituency election to be rerun.

There is no equivalent in relation to referendums, and that is the issue that I seek to address through the amendments in this group. There is nothing in legislation that imposes consequences on people who make false statements in relation to referendum campaigns or related issues, or to the process of conducting those referendum campaigns.

Across the political spectrum, we are all conscious of the way in which our democracy is being affected by the prevalence of deliberate falsehoods in campaigning. Indeed, the United Kingdom Parliament’s Digital, Culture, Media and Sport Committee has considered the issue and published information about the extent of the interference, social media platforms have begun to change their policies with regard to what kind of advertising they will carry and the mainstream media has begun to conduct more fact checking and to be more vociferous about exposing deliberate falsehoods.

Adam Tomkins (Glasgow) (Con)

As I understand it, section 106 of the 1983 act applies to constituency election campaigns, not to national media campaigns—I am not sure whether I am right about that, but that is my recollection. The examples that you use concern national media campaigning rather than the kinds of things that candidates might say about one another in a constituency, so they would not be captured, even in the context of elections, by any of the offences that are legislated for in that section of the 1983 act. The analogy between what section 106 of the 1983 act does and what amendment 85 does is an inexact one.

Patrick Harvie

That is fair. What I am doing is examining what section 106 of the 1983 act is intended to achieve and applying it in a broader way in relation to referendums—I believe that it should also be applied in a broader way to elections.

Amendment 85 does not apply only to statements that are made by candidates; it creates an offence that can be committed by anyone, including national political campaigns that make statements about candidates. It broadens the position to cover objectively false statements, not merely expressions of contestable opinion, in relation to the issues and the process and conduct of a referendum. I think that that approach should be taken in relation to elections as well, albeit that this bill is about referendums.

I draw members’ attention to the fact that just in recent days, for example, an entirely concocted tweet emerged purporting to be in the name of Jeremy Corbyn in response to the London bridge attack. It claimed that, as his first reaction to those events, he stated:

“A man was murdered by British Police in Broad daylight”.

That was entirely untrue. If Jeremy Corbyn were to identify the originator of it, he could say that it was defamatory—defamatory or libellous, I suppose—but it does not engage any aspect of electoral law.

If something similar were to happen during a referendum, again, there is a lack of any legislation to deal with it. It has happened during referendums. There were many legitimate, contestable claims made in the 2016 EU referendum, but to state that

“Turkey is joining the EU”

was an objectively false statement. To say that

“The EU blocks our ability to speak out and protect polar bears”

was an objectively false statement. I am sure that members are familiar with others, so I do not need to go into huge detail.

With this group of amendments, I have sought to create the possibility that a criminal offence would be committed when objectively false statements are made about the conduct of the poll. For example, in a future referendum in Scotland using the new electoral franchise—assuming that the Scottish Elections (Franchise and Representation) Bill also passes—if someone was to go around saying, “English people aren’t allowed to vote in this election,” and using that claim as a voter suppression technique, they would fall foul of this offence. If they were to say, “Young people—16 and 17-year-olds—aren’t allowed to vote in this referendum,” they would be making an objectively false claim as a voter suppression technique, and they would fall foul of the offence.

The offence would also address matters connected to the question on which the referendum is being held. Again, the offence would not apply to legitimate expressions of opinion or contestable claims, such as, “I think this would be good—or bad—for our economy.” It would be for the court to determine whether objectively false claims had been made. That is set out in amendment 85, and amendments 86 and 87 deal with the consequences.

I think that it is legitimate to say, as amendment 87 does, that if such claims are made by

“a permitted participant”

or

“a designated organisation”,

as opposed to an individual, the criminal consequences should be higher. I would group amendments 85, 86 and 87 together as one aspect of the offence.

Amendments 88 and 89 then deal with the political consequences: they are an optional extra, if you like, following the creation of the offence, and concern challenges to the validity of the results. Again, I remind members that a constituency election can be overturned if such substantial claims are found to have been made.

Amendment 88 allows for a period in which a petition can be brought to the Court of Session

“to declare the result of the referendum not to be valid”.

It would be for the court to determine whether

“a sufficient number of persons have been convicted of, or charged with, the corrupt practice of making a false campaign statement”

and whether

“the nature of the offences”

are adequate to justify a ruling. That ruling could involve prohibiting ministers from taking action to implement the result of the referendum, or imposing conditions. I have made it clear that such a prohibition would not prohibit ministers from taking preparatory action—for example, negotiating with another party as to how the result would be implemented, or, indeed, drafting and introducing legislation. It would be the irrevocable action, the ultimate implementation, that would have to wait until that process had been dealt with.

Amendments 88 and 89 would give members of the public and campaigners the ability, to some extent, to go to court and say that a referendum has been so brutally interfered with by fake news or false claims as to render its results invalid.

It is perfectly clear, as I think we all know, that if the 2016 referendum had been regulated at the same level as an election, the result would already have been overturned. It would not have withstood the same scrutiny as an election result and would not have been regarded as having the same legitimacy, given the practices that we all know took place in relation not only to existing criminal offences but to the deliberate falsehoods that were expressed during the referendum campaign. If we are going to have more referendums in Scotland in the future—and it is an “if”—we should hold them to a high standard, which should include a provision that is equivalent to the offence of making false statements in relation to an election.

I move amendment 85.

Murdo Fraser (Mid Scotland and Fife) (Con)

I thank Patrick Harvie for lodging his amendments and opening up a debate on an interesting topic, which involves the whole issue of false statements in referendums and indeed the question of sanctions. In last week’s debate at stage 2, when we considered sanctions for a breach of the rules, I raised a concern that levying substantial fines long after the event would not be a sufficient deterrent. The campaign groups affected might, by that point, have been wound up or might have no resources, so it is hard to see what impact such sanctions would have. Patrick Harvie takes a much more robust approach in his amendments, which would create a new criminal offence for those who make false statements. I note from amendment 87 that those who are found guilty of such an offence could spend up to four years in jail.

It might be worth putting the matter in some context. Let us reflect on some of the statements that were made in the 2014 referendum. Members might remember that we were told that the finances of an independent Scotland would be robust and that, because the oil price would be more than $100 a barrel, they would be in balance. We were told that if we voted no in 2014, the national health service in Scotland would be privatised—it is clear that that statement was false and untrue. Of course, we were told in 2014 that the referendum would be a once-in-a-generation vote—or indeed a “once in a lifetime” vote, as the current First Minister had it. That statement has clearly turned out not to be true.

If Patrick Harvie is proposing that those who were responsible for making those statements, including the current First Minister and the Cabinet Secretary for Government Business and Constitution—and perhaps Mr Harvie himself—should be hauled before the courts and accused of a criminal offence, I would have a certain enthusiasm for that view. [Laughter.]

Patrick Harvie

I will see you in court.

Murdo Fraser

Indeed, if it would be helpful to the authorities in addressing those issues, I could make a citizen’s arrest. I simply highlight the concerns around that particular approach. What is a demonstrably false statement? Such matters are, in effect, subjective rather than objective. Although I might regard a statement as false, Mr Harvie may take the opposite view.

Although Patrick Harvie’s approach is very attractive, and I would love to see the guilty men and women prosecuted for their statements in 2014, I just cannot see how it would work in practice. The problem is amendment 85’s proposed new subparagraph 11A(5), which provides for a defence if a person can show that they

“had reasonable grounds for believing, and did believe, the statement to be true.”

I cannot see, from a legal perspective, how that defence would work. A court would be asked to look into somebody’s mind and see whether they actually believed a statement at the point at which they made it. How a court could be expected to do that is, from a legal perspective, utterly beyond me.

That brings us to the contestability of subjective statements that are part of the political debate as opposed to objective statements that can be tested and would meet the required level for a criminal conviction. For that reason, although I admire Patrick Harvie for lodging his amendments and he makes some important points, I cannot understand how such a provision would be legally enforceable.

Alex Rowley (Mid Scotland and Fife) (Lab)

I have similar difficulties with amendment 85. In principle, it raises an issue that we need to look at, because we are seeing more and more lies and downright lies. A good example of that is the lie about what Corbyn said about the London bridge attack.

Murdo Fraser says that the national health service would be under threat if there were an independence referendum, but the health service is under threat now. Who is right and who is wrong? That is the difficulty with implementing Patrick Harvie’s proposed approach.

I would be grateful if Patrick Harvie could pick up on that point, because I think that he is right, in principle, to say that something needs to be done and we cannot continue as we are. The situation is damaging our democracy. We are seeing more and more of the kind of political campaigning that takes place in the United States, and people just do not know what to believe.

Fake news is undermining our democracy, and I agree with the principle behind amendment 85. However, like Murdo Fraser, I have difficulty seeing how the approach could be implemented, given the legalities.

Adam Tomkins

Like Alex Rowley and Murdo Fraser, I am very sympathetic to the intention behind the amendments in this group, which is to clean up political campaigning and inject a sorely needed requirement for truth into our political campaign statements.

Let me reflect a little on the reasons why we do not already have such rules in the context of elections. The intervention that I made on Mr Harvie was not a point of legal pedantry—that is unusual, for me—but an important point of principle. The Representation of the People Act 1983 is a codification statute: it codifies a number of elements of electoral rules, many of which date back to the 19th century. In the 19th century, of course, constituency campaigning mattered much more than national media campaigning. It was therefore understandable that the focus of electoral rules in the 19th and early 20th century was on constituency campaigns rather than national media campaigns.

There is no analogy to be made between constituency campaigns in an election and a national referendum campaign. Section 106 of the 1983 act makes it an offence to make false statements about candidates.

We all know that constituency campaigns still matter; we also know that they do not matter as much as they used to and that national media campaigns matter a great deal, whether we are talking about broadcast, print or social media.

We need to reflect on why the old rules about constituency campaigns have not been translated into rules that make it an offence to make a false statement in a national media campaign. I think that the reason is not lethargy but a sense that to convert a political argument about the truth of a claim about the future of the NHS into a legal argument for a court of law that would have the power to invalidate not merely a constituency election but an entire national result would be to make a huge change to the nature of our electoral law and indeed our democratic politics. I do not think that such a change would be at all desirable, notwithstanding the ambition that Mr Harvie and I share to inject a greater degree of truth into politics.

I think that we should proceed incrementally, rather than through any other means. I would want an organisation such as the Law Commission or the Scottish Law Commission to take a long, hard look at our existing electoral rules, to see whether the rules that apply to constituencies should apply to national campaigns, and then to learn the lessons for referendums from that exercise.

Notwithstanding that I applaud and share Mr Harvie’s intentions, it would not be prudent to lift what are, in essence, 19th century rules about constituency campaigning into 21st century referendum campaigning, without much more careful evidence taking and deliberation on the consequences—intended and unintended—than any of us is capable of. I have grave hesitations about going down the proposed route.

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

I welcome Patrick Harvie’s amendments; I cannot support them, but they raise an exceptionally important point. In lodging his amendments, Mr Harvie is starting the process of what I think will have to be a profound change in how we run elections and referenda. However, these particular amendments do not take us into the position that we need to be in. I especially welcome the comments that were made by Alex Rowley and Adam Tomkins, which addressed the issue in a very serious and sensible way.

Just as the norms of our constitution have been, the norms of our politics are in the process of being trampled on, in a fairly contemptuous way, by the current UK Government. It is not alone in acting in that way, but it is a particular offender. There is a lack of the element of self-policing that we would expect, given the norms of politics whereby people usually endeavour to tell the truth. Although what they have said might be open to interpretation and disagreement, there would usually be at least an intention to be truthful. Just like the norms that apply to the operation of our constitution, which we have recently seen being broken down by, for example, the prorogation of the Westminster Parliament, such matters are normally self-policed and the media usually play a role in policing them. Therefore both of those elements have broken down, to a greater or lesser extent. If we were to seek to draw a historical parallel, we could point to what we might term the wild west period of elections in the 18th and early 19th centuries, when almost anything went.

Therefore there needs to be a re-examination of how elections and referenda are conducted, which should consider the concept of truthfulness, people’s ability to judge matters in the current extraordinary landscape, in which a wall of information is constantly available, and guidance on picking out from that wall what is true and what is false. We need to think about this very important issue, but we are not yet in a position where we could come to a conclusion on it. I agree with Adam Tomkins that someone—possibly the Scottish Law Commission, but other bodies might be appropriate—needs to look at it very carefully indeed.

We are not totally without defence. The point that has been made about the Corbyn tweet is interesting. However, if it is defamatory—and I do not think that we are in any doubt that it is—the issue there will be to find out who posted it and to act on it according to the existing law. Some of the things that we have been talking about doing—such as the process of imprints—and about how the Electoral Commission operates should help with that to some degree.

However, regulating the truthfulness of campaign statements cannot be done effectively at this stage—and, regrettably, it cannot be done by Patrick Harvie’s amendments. A number of witnesses have said that the Electoral Commission would not be the appropriate body to assess such truthfulness, and they were right. The approach that amendment 85 takes is different, in seeking to render the making of false campaign statements an offence and ensuring that there would be penalties for it. However, the likely outcome of such an approach would be a severe curtailment of the freedom of speech.

Amendments 85, 86 and 87 would impose heavy penalties on individuals. That would have a stifling effect on debate, because it would inevitably reduce the willingness of individuals and groups to participate in it. Therefore such an approach would probably undermine rather than improve the information that was available to voters.

There is also a more philosophical element to truth. We might ask which body should decide what is true. In amendment 85, the definition of what would be an offence is very broad. It mentions

“matters connected to the question on which the referendum is being held”

and

“the consequences of a particular outcome”.

Such matters would not be easily interpreted as statements of fact. A candidate’s personality and the way in which they conduct themselves are much clearer matters for interpretation.

We can point to statements that we know were factually incorrect, such as the earlier example about Turkey, which was used by, among other people, the Prime Minister himself. However, making our courts the arbiter of such truth during an election campaign would be exceptionally difficult. Many of us would anticipate that that would produce a flurry of court action in the midst of an election campaign, which would have a very disruptive effect on anything that we understand to be the election process. I do not think that there would be any restraint in using such an approach—or in complaining about such matters—and we might then enter into a very difficult position

It is also likely that that approach would have such a pronounced effect on the drafting of proposals that it might make them incompatible with the right to freedom of expression that is covered by article 10 of the European convention on human rights. That is regrettable, because I am sympathetic to doing something—but not to doing in it in this way.

In addition, amendments 88 and 89 would put in place a process to allow the result of a referendum to be challenged. Again, I do not think that the underpinning principles are wrong; it is right that problems with campaigns should be identified and dealt with as soon as possible, rather than being resolved months later. That is why the bill includes penalties for breaching campaign rules and gives additional powers to the Electoral Commission. The way in which the amendments have been drafted would be immensely disruptive and, as Adam Tomkins has indicated, they would make it almost impossible to get a result from a referendum and to implement it.

I cannot support any of the amendments in the group. If the committee were to agree to them, the amendments would need to be substantially and radically amended at stage 3 if there was to be any prospect of them doing anything other than—unintentionally, I believe—wrecking the process of having a referendum.

However, Patrick Harvie has produced something that is very important, and I hope that it will lead to a number of committee members thinking about how we can take the issue further, who should be examining the process closely and what the outcome should be in terms of electoral law. I will certainly be thinking about that.

Patrick Harvie

I thank members who have taken part in the debate and who have recognised that the subject will need to be addressed in one way or another. In its stage 1 report, the committee did not agree with the views that had been expressed by some that the Electoral Commission should be an arbiter of truth, and I entirely understand why we did not agree with that. However, at some point, we will need to decide how deliberate falsehoods will be challenged. If they are not challenged by an independent body such as the commission, it seems to me that using the courts is the most obvious alternative route. I lodged my amendments to begin that debate and to flesh out how that could be achieved, because it is clear that it is not being achieved currently.

In my opening remarks, I mentioned defamation law as a potential route, and the cabinet secretary also mentioned that. Defamation law is there for an individual who feels aggrieved about the way in which they have been misrepresented or about statements that have been made about them. Given the political consequences, it would clearly not be an adequate response for a politician to take action under defamation law during an election or referendum campaign; that would only draw more attention to the claim that was made about them. The political consequences of that could serve only to advance the false claim that has been made. There would be no ability to overturn or call into question the result of the democratic exercise that had been interfered with. Defamation law is there for the individual, but it does not achieve the necessary political consequences.

Adam Tomkins quite rightly asked us to consider why long-standing laws that relate to a time when constituency campaigns were more the core and focus of the democratic experience have not, over time, been applied to national campaigns. I suspect that the answer is that there is an element of the frog being slowly boiled. I ask members to make a comparison with the current election, for example, in which those rules are not applied at national level, just as they would not be applied at national level in a referendum.

We all had a bit of a laugh around the claims about Jo Swinson and the squirrels, didn’t we? That was all a bit of fun. Those were false claims—fake news, if we want to use that phrase. If the squirrel lovers of Jo Swinson’s East Dunbartonshire constituency had been so offended and taken in by those claims that the result in that constituency election had been affected, Jo Swinson would have had some degree of call to the courts.

If the same claims were made during the leaders debate about Nicola Sturgeon, who is the leader of a political party that is contesting that national election but not a constituency candidate in that election, there would be no similar ability to appeal to the courts for a political consequence. That is a gap. It is not a deliberate choice not to apply constituency rules at a national level but a gap that has opened up and, given the importance of national campaigns in both elections and referendums, it needs to be filled.

This is not about confusing subjective and objective questions. Although defamation is not an adequate response to this kind of situation, there is evidence that the courts are well capable of telling the difference between an objective and a subjective claim. For example, a forecast about oil prices or economic consequences is never a true or untrue statement at the time that it is made, in simplistic terms. A forecast is a forecast; it involves a degree of modelling and evidence but also guesswork and it will always be seen in those terms.

Very briefly, I do not think that amendment 85 would involve a breach of the ECHR. I am very committed to the ECHR and the principle of human rights, but part of that principle is that none of them is absolute. They all require to be balanced against one another and applied in a proportionate manner. The intention of legislation in the area is to prevent bad behaviour and its existence in relation to constituency campaigns has, broadly speaking, prevented bad behaviour rather than resulting in a slew of cases before the courts; it has rarely had to be enforced. If we had it in relation to national campaigns for referendums or elections, I think that it would also have that effect of preventing bad behaviour.

I welcome the fact that Adam Tomkins and the minister have both suggested that a body such as the Scottish Law Commission might consider the matter further. For the time being, I seek permission to withdraw amendment 85. I will consider whether there is another way to bring the debate to the chamber at stage 3. Whether or not we make a change to the bill at this point, I think that Parliament as a whole needs to debate the issues in more depth in the future.

Amendment 85, by agreement, withdrawn.

Amendments 86 and 87 not moved.

Schedule 6 agreed to.

Section 36 agreed to.

Section 37—Power to modify this Act

The Convener

Amendment 70, in the name of Adam Tomkins, is grouped with amendments 71 to 73.

Adam Tomkins

The amendments in the group apply to section 37, which contains the power that the Scottish ministers will have, if the bill is enacted, to make regulations that modify legislation

“as they consider necessary or expedient”.

The breadth of section 37 was one of the issues about which witnesses were most critical when they gave evidence at stage 1.

The purpose of section 37 is to ensure that this framework legislation for future referendums is sufficiently “dynamic”—the word that the minister has used many times—and flexible. The committee took a nuanced position on section 37 in its stage 1 report by supporting its objective to provide for dynamic legislation for referendums in the future, while welcoming what was and, I hope, is still the cabinet secretary’s openness to considering amendments that would limit use of that power while still meeting the policy objective.

Amendments 70 and 71, which are in my name, are designed to deliver exactly that—to maintain the policy objective of section 37, but limit the use of the ministerial power to modify enactments in two ways. First, amendment 70 would remove the words “or expedient” from section 37(1). Secondly, amendment 71 seeks to leave out the phrase “(or proposed modification)”. Section 37(1) would therefore read:

“The Scottish Ministers may by regulations make such modifications of this Act as they consider necessary ... in consequence of or in connection with any modification”

—but not “proposed modifications”—

“of any other enactment”.

Those are the two elements of the overbreadth—if I can put it that way—of section 37 that attracted most criticism from witnesses, including Dr Alan Renwick of University College London’s constitution unit. In his written submission to the committee, he stated that the inclusion of

“the words ‘or proposed modification’ would seem to offer Ministers a mechanism for making almost any change without the need for primary legislation.”

That would be an extraordinary power for this or any Parliament to give ministers, so it needs to be curtailed without undercutting the stated purpose of section 37. I hope that that explains amendments 70 and 71.

I will not speak to amendment 72, in the name of the minister—I will let the minister speak to it.

Amendment 73, which is also in my name, is a procedural amendment that would mean that regulation that might be made under section 37 would be subject to super-affirmative procedure, rather than merely affirmative procedure. It simply seeks to protect Parliament and to prevent its legislation from being unilaterally changed by ministers without appropriate parliamentary scrutiny. That would add a procedural safeguard to the substantive curtailments of ministerial discretion that amendments 70 and 71 seek to apply.

I move amendment 70.

Michael Russell

I think that Mr Tomkins and I are pretty close to agreement on the changes that need to be made in section 37; we are now fine tuning the detail of those changes. I have accepted—as I did when I gave my initial evidence—that we need to reassure people about section 37. The amendments will adjust the delegated power in section 37 and preserve the dynamic nature of the legislation, while providing a bulwark against the possibility of the legislation being misused, which was one of the committee’s concerns.

I welcome amendment 71, which is in the name of Adam Tomkins. It will remove the option of introducing modifications based on proposed modifications for other elections or referendums. Having heard the evidence from stakeholders who expressed concern that the power as drafted could be used to amend the framework by the back door, I had decided to lodge an amendment, but that was not required. I therefore support amendment 71 and encourage the committee to do the same.

I cannot support amendments 70 and 73. Amendment 70 would remove the option of Scottish ministers introducing, for Parliament’s approval, amendments that would, in ministers’ view, improve the referendum process, although they might not be strictly necessary. One example is the amendment to make Easter Monday a dies non, which we have already discussed and included in the bill. If ministers wanted in the future to make such an amendment using the section 37 powers, with the idea of taking a proportionate approach to a comparatively minor matter, they would wish to have the power to make modifications that are “expedient”.

Standardising the dies non across polls is sensible and would reduce the risk of confusion, but it is not beyond doubt that its being described as necessary could be challenged. I am sure that counting officers and electoral registration officers could deal with different processes for different polls, but that would increase the risk of inadvertent errors. Under the amendments the power will be constrained, but if we were to delete the words that Mr Tomkins suggests we delete, that would make it more difficult to use the framework in a sensible way.

Amendment 73 would introduce requirements for any draft regulations under section 37 to be the subject of consultation and to be accompanied by an explanatory document. I will not support that amendment—not because I am against what it seeks to do, but because it is not necessary. The first part of the amendment deals with consulting on draft regulations. As, I am sure, the committee appreciates, consultation of stakeholders on proposed amendments related to elections is a given. The Scottish Government routinely consults on proposed secondary legislation concerning elections—for example, the secondary legislation that is needed for local government elections and Scottish Parliament elections.

I sympathise with the suggestion that an element of statutory consultation should be required, as we discussed at stage 1. That is why I have lodged amendment 72, which will require Scottish ministers to consult the Electoral Commission on use of the section 37 power. That will fulfil the requirements in Adam Tomkins’s amendment 73, and go further. As we have heard, the Electoral Commission is a valued source of independent expert advice. The commission is well placed to comment on any proposed use of the power, and to help to ensure that proposals are as appropriate as possible.

Patrick Harvie

I am little unclear, cabinet secretary. If there is time for the Government to consult the Electoral Commission, then surely there is also time for the wider consultation that amendment 73 would require? Would not it be reasonable to suggest that regulations being the subject of such wider consultation might, to an extent, allay the concerns that have motivated amendment 70, and allow amendments or adjustments that are expedient, but not necessary, to attract greater confidence in them?

Michael Russell

I do not disagree with Patrick Harvie. Therefore, a criticism of my amendment 72 might be that it should be drawn more widely in order that other bodies will also be consulted. I would be prepared to consider that. However, the normal practice is to consult the Electoral Commission on such issues; that exists in other legislation. If Patrick Harvie is suggesting that we should consider an amendment like amendment 72 at stage 3 in order to widen the process out to wider consultation—if that is what Mr Tomkins seeks to achieve—I am willing to consider that.

Proposed new subsection (4)(b) in amendment 73, however, includes a requirement that regulations that are laid before Parliament be accompanied by an explanatory document. That change is unnecessary; it is already practice that draft regulations be accompanied by a policy note. That addresses the matter of amendment 73.

Amendment 72 addresses the committee’s objections in a proportionate way. However, if members feel that amendment 72 requires to be slightly widened to include other bodies, I will be happy to consider how we might do that.

Patrick Harvie

All the amendments in the group are reasonable. I welcome the cabinet secretary’s willingness to consider for stage 3 an amendment that would widen the consultation. That, I hope, at least holds open the possibility that at stage 3 we can meet Adam Tomkins’s intentions. Although I will support the Government’s position, I would like the cabinet secretary and Adam Tomkins to see whether it is possible to work together to achieve something that is agreeable and broadens the consultation.

The Convener

Nobody else wishes to comment, so I invite Adam Tomkins to wind up, and to press or seek to withdraw amendment 70.

Adam Tomkins

I am grateful to the cabinet secretary and Patrick Harvie for their remarks. My concern about Mr Russell’s amendment 72 is that it would impose on Scottish ministers a duty to consult the Electoral Commission, but would not confer on the Scottish Parliament the right to see the advice of the Electoral Commission before voting on any statutory instrument that might be made under section 37.

Michael Russell

I am happy to include that in consideration for stage 3.

Adam Tomkins

I was going to go on to say that, if that could be included for consideration at stage 3, that would certainly meet my concerns.

Given the nature, tone and substance of the cabinet secretary’s comments, I am happy not to press amendment 70. I will press amendment 71 and but not amendment 73, subject to those considerations and the fine tuning that the cabinet secretary described being revisited in time for stage 3.

Amendment 70, by agreement, withdrawn.

Amendment 71 moved—[Adam Tomkins]—and agreed to.

Amendment 72 moved—[Michael Russell]—and agreed to.

Amendment 73 not moved.

Section 37, as amended, agreed to.

Section 38 agreed to.

Section 39—Restriction on legal challenge to referendum result

The Convener

Amendment 110, in the name of Jackie Baillie, is in a group on its own.

Jackie Baillie (Dumbarton) (Lab)

Amendment 110 is my final amendment about timescales. I have been persistent. I am clearly an eternal optimist, and I live in the vain hope that the Scottish Government might even agree with me on this one.

The amendment proposes that the period in which a challenge may be launched to the result of the referendum via judicial review should be eight weeks, rather than the six-week period that is set out in the bill. That increased period for reflection and discussion before legal proceedings are engaged in would be helpful. It is always better to allow time for deliberation before something as substantial as a judicial review is asked for, and the proposal is consistent with the theme that has surrounded the majority of my amendments, which has been about ensuring that there is more time for the process.

I move amendment 110.

John Mason (Glasgow Shettleston) (SNP)

Will the member give way?

Jackie Baillie

I have finished. You were too slow, Mr Mason.

The Convener

You can still contribute at this point if you wish, Mr Mason.

John Mason

I just wanted to ask Jackie Baillie—maybe she would like to intervene on me—whether she could tell us a little more about her reasons for proposing a period of eight weeks rather than six, seven or nine weeks. Does she have a particular reason for proposing eight weeks? I am wondering whether she is going to intervene before I finish.

The Convener

Jackie Baillie will have a chance to wind up, so she will be able to answer your question then if she wishes to do so.

Do any other members wish to contribute to the debate?

Patrick Harvie

I have resisted Jackie Baillie’s other amendments on timings, but I am more open to amendment 110 than I have been to the others. The practical barriers to initiating a judicial review are significant, especially for those who do not come with financial resources, and there is perhaps a reasonable case for adding a little more time to allow those barriers to be overcome. However, I am also open to hearing what the cabinet secretary has to say.

The Convener

We will hear from him right now.

Michael Russell

Convener, persistence pays off in the end. Not only do I thank Jackie Baillie for lodging amendment 110 but, having listened to her points—and notwithstanding the fact that I am intrigued by John Mason’s view that there is a mystical element to the number eight that Jackie Baillie knows about but nobody else does—I think that hers is a defensible position. Patrick Harvie made a sensible point, too. Making a challenge is a big step for people to take, and I think that they should be given a slightly longer period to do so, so I am happy to accept the amendment.

The Convener

I call Jackie Baillie to wind up and press or withdraw her amendment.

Jackie Baillie

Convener, I will quit while I am ahead. I press amendment 110.

Amendment 110 agreed to.

Section 39, as amended, agreed to.

After section 39

Amendment 88 not moved.

The Convener

Amendment 74, in the name of Adam Tomkins, is in a group on its own.

Adam Tomkins

Amendment 74 provides that the Scottish ministers, Scottish public authorities, the Scottish Parliament and members of the Scottish Parliament

“must respect and, so far as is consistent with their functions, implement decisions made by the referendum.”

The amendment is designed to start relatively late in the legislative process a debate that I wish we had started much earlier, which is to think a bit more carefully about what the relationship is between decision making by referendum and our ordinary processes of parliamentary politics.

Speaking for myself, I think that we have made a bit of a mess of this in the United Kingdom. We have had resort to constitutional referendums for a variety of reasons, which we can argue about, that are probably subjective rather than objective truths, and we do not always know what to do with them after they have happened. In other words, the relationship that we have in Britain and in Scotland between parliamentary democracy and popular or direct democracy is unhelpfully untidy. I do not think that it is doing the political process any favours, and I think that it is doing it some harm.

Amendment 74 is designed not to tie up all those loose ends—I do not think that any amendment could do that—but at least to tie up some of them, and to try to legislate for what the relationship ought to be between, on the one hand, Government and Parliament and, on the other, decisions made by referendums.

The other element of the role of referendums in our democracy, which I think that this bill might usefully have addressed but has not, is the question whether referendums are binding or merely advisory, and, if they are binding, on whom they are binding and what is the nature of the bond—is it a legally enforceable bond, or is it a political commitment or what have you? Amendment 74 seeks to address that issue by moving beyond it and saying that referendums decide things and that, although the decisions that referendums make are not necessarily legally binding, there is a legal and constitutional obligation on those who hold public office to seek to implement those decisions, within their powers.

I am not sure that I am going to press the amendment. However, it is more than a mere probing amendment. It is designed to elicit a debate, or at least a response from the Government, on what we want the relationship between parliamentary democracy and popular democracy to be in Scotland and on why we want to legislate on referendums without addressing that broader fundamental question. It is also designed to get a response to the question of what we mean when we say that a referendum is merely advisory or, contrariwise, is somehow binding. Those are elemental questions about the role of the referendum in modern Scottish politics. It would have been helpful to have had those questions addressed earlier in the process, but at least we are able to address them now.

I move amendment 74.

John Mason

Will the member take an intervention?

Adam Tomkins

I have finished.

The Convener

You can make your point now, Mr Mason.

John Mason

I did not want to interrupt Mr Tomkins too early; my apologies for being too late.

I am intrigued by what Mr Tomkins is saying. I understand a bit about implementing decisions, and I think that it is good that we are having this discussion because, as I understand it, all referenda have been advisory until now, both in Scotland and the UK, although people have committed to accept—

Adam Tomkins

Apart from the alternative vote referendum, which was binding.

John Mason

Thank you for that clarification.

I am interested in what the member means by “respect”. Does that mean “obey”? I think that I respect the result of every election. I was defeated in 2010 and respected that result. However, I immediately began campaigning to win the next election that I would stand in. Does respecting the results mean not campaigning against the result? Perhaps Mr Tomkins can answer that when he sums up.

Patrick Harvie

Adam Tomkins rightly says that we need a deeper debate about the relationship between parliamentary democracy, direct democracy, and deliberative and participative democracy, and it is useful that we have the opportunity to discuss that today. As was the case with the issue that I addressed in my amendments in the first group today, I doubt that this discussion will be the last word on the matter, and I think that it will require further reflection.

Mr Tomkins is right to acknowledge that the UK has made some serious errors in the way in which it has used referendums in recent years. However, I do not think that amendment 74 deals with the issue in the right way. The idea that we would move from a position of saying that referendums are advisory to a position in which we simply prohibit advisory referendums—that seems to me to be what the amendment would do, as it would require the implementation of the result rather than the consideration of the result by political decision makers who could decide what to do with that advice—seems to go way too far.

There is no timescale involved, so it seems to me that, if we pass the amendment, members of the Scottish Parliament for all time and in all sessions would be bound by the result of a referendum that had taken place however many years previously. Such an approach would limit the ability of the people of Scotland to choose, in future elections, representatives who disagreed with the result of a previously conducted referendum.

We recognise that there is a difference between pre-legislative and post-legislative referendums, which is not properly dealt with by amendment 74, and has not been properly dealt with in the debate that we have had. Amendment 74 asks us to confront some important questions, but I do not think that it resolves those questions. Perhaps we will need further debate on the matter; at the moment we are not in a position in which we can agree to an amendment that deals with the issues.

Michael Russell

I thank Adam Tomkins for lodging amendment 74. The amendment has prompted a useful discussion, which is related to the wider discussion of how the constitution works in these islands, where there are different Parliaments and different traditions of sovereignty—that is an issue in this context.

The current Tory party manifesto contains a commitment to a constitution, democracy and rights commission of some sort. I have to say that I expect the worst from such a commission, but if any good were to come from it, that might involve consideration of issues such as the proper place of referenda and how they operate in our different traditions.

As we saw in the 2016 referendum, the result of a referendum is not always clear cut, so there needs to be space for further discussion. Further discussion has taken place in Parliament. The Brexit example shows that the Parliament needs to have space to decide how to move forward on a decision that was, at the very least, contested—we have discussed the nature of the campaign, and of course the proposal was rejected in Scotland and Northern Ireland.

If we apply the approach in amendment 74 retrospectively and ask what the situation would have been if there had been a requirement in the UK to observe the outcome of the 2016 referendum without further debate, we simply do not know the answer, but it would have changed the process and it might have changed the outcome. For example, what would have happened if there had been requirements for how and when to leave? Would the European Union Referendum Bill have been passed in such circumstances? I remind people that, in June 2015, David Lidington, who at the time was Minister for Europe and the minister responsible for the bill, said, quite clearly:

“The referendum is advisory, as was the case for both the 1975 referendum on Europe and the Scottish independence vote last year.”—[Official Report, House of Commons, 16 June 2015; Vol 597, c 231.]

That was an assurance to the House of Commons that the referendum was advisory.

I accept Adam Tomkins’s point about the AV referendum, which is an anomaly that we should consider.

Referendums might in future be initiated by a citizens assembly. In that regard, the Irish experience is interesting and germane. There is no automatic assumption written into the process that recommendations from referenda will be implemented; there is no automatic right in that regard. Even the celebrated referendum on the constitutional ban on abortion came from a process of moving towards a position, through a committee of the Dáil Éireann, which eventually decided that holding a referendum was the right thing to do—in a country in which referenda are much more used than is the case here.

A citizens assembly could bring forward proposals for referenda on a wide range of topics, on which the Parliament might well have split views across party or other lines. An unclear legal requirement to implement the result without further discussion or consensus in the Parliament would not be the best approach to follow for people who are elected to represent their constituents, perhaps on those very issues.

I cannot support amendment 74. It raises concerns that we need to consider. Indeed, the bill has raised a number of such concerns. It is important to find a way for any referendum to lead to a consensual outcome—something that has proved to be very difficult in the political traditions to which we belong—but seeking to bind members and the Parliament is not the solution.

I say again that the debate about the place of referendums in the constitutional structure and how they apply in different democratic and constitutional traditions is important and should continue. I ask Adam Tomkins not to press amendment 74, but I certainly want debate and discussion about how referendums are used to continue.

Adam Tomkins

I thank John Mason, the minister and Mr Harvie for their thoughtful questions and comments. The debate is worth having and, although I have already indicated that I do not intend to press amendment 74, I would like to take a few minutes to respond to the points that have been raised. First, John Mason asked what is meant by “respect”. There is no intention to create any legally enforceable duty. It would not be a question for the court to determine whether a minister or a member of the Scottish Parliament has or has not respected the referendum outcome.

Amendment 74 is an attempt to prevent referendums from becoming what the Canadians once called “neverendums”, where the question that has been put to people is somehow not determinative of the referendum outcome. Referendums are about making decisions, even if those decisions do not formally or legally bind Parliaments absolutely.

John Mason

Would time come into it in some way? Does the member think that an outcome would be binding for a certain amount of time and then it would no longer be binding after that?

Adam Tomkins

To be honest, I had not considered that interesting question, which Mr Harvie also raised. For how long, if at all, should candidates in future elections to this or any other Parliament be bound by referendum decisions that were taken at some point in the past? I have not given that question sufficient thought and it would need to be thought through before my idea was taken further forward.

In response to the other major point that Patrick Harvie made, I have no intention of prohibiting advisory referendums or of turning them into binding or mandatory referendums. If that is the intention that is conveyed by the wording of the amendment, the wording is unfortunate. I am simply attempting to bring some clarity to what is currently unhelpfully murky.

As I said, the lack of clarity about the issue is doing harm to our political process. What is the relationship between our ordinary processes of parliamentary democracy and the extraordinary event of holding a referendum? The fact that we do not know the answer to that question is doing us harm.

Patrick Harvie

Is it not fair to say that a great amount of the murkiness and lack of clarity is not the result of legislation or referendum rules but the result of the politics of a recent but substantial referendum, in which the Brexiteers do not agree what “leaving” or Brexit means and what implementing the result in 2016 means? Given that the Brexiteers do not agree, how can anybody—Government, Parliament or anyone else—be bound to respect something that the winning side cannot even define?

Adam Tomkins

I know that there is an election on, but I have been trying not to make politics out of the issue. The criticisms that can be made of the 2016 referendum can also be made of the 2014 referendum. During the 2014 independence referendum campaign, the First Minister of Scotland said that it was a once-in-a-lifetime event and a once-in-a-lifetime opportunity.

Michael Russell

Will the member give way?

Adam Tomkins

Not at the moment. Everything that the First Minister has said and done since 2014 has undermined those claims, which she made on the record several times in 2013 and 2014. That is just one example, but there are many.

Michael Russell

Will the member give way on that point?

Adam Tomkins

Let us not get into trading examples and counterexamples.

The point is made that there is a lack of clarity between what is decided in referendums and what the implications of those decisions are for our ordinary processes of parliamentary politics. It is unfortunate that, while deliberating on a bill on referendums, we have not had a fuller and franker exchange of views about how we, as MSPs, understand the relationship between parliamentary politics and the extraordinary things that are referendums.

I have already said that I do not intend to press amendment 74. I am grateful to all the members who contributed to the debate.

Amendment 74, by agreement, withdrawn.

Amendment 89 not moved.

The Convener

Amendment 111, in the name of Jackie Baillie, is in a group on its own.

Jackie Baillie

Given what happened with my previous amendment, I hope that I am on a roll. The cabinet secretary is shaking his head.

I am conscious that this is the last amendment today, and I do not wish to delay the committee unduly, but amendment 111 covers an area of current debate. It is fair to say that anyone objectively considering the outcome of the 2016 EU referendum will probably use terms such as “chaos” and “uncertainty”.

All of us voted based on myriad reasons. Some were influenced by slogans on the sides of buses that were patently untrue. There was no detailed prospectus of what leaving the EU would mean, what it would do to our economy and jobs, what it would mean for trade deals or what the terms would be. We have, as has been referred to in discussing other amendments, subsequently seen politicians unable to agree, the UK Parliament unable to steer a way through and a deal that is neither widely welcomed nor widely understood. In all those circumstances, it is not surprising that there is a call for a people’s vote or a confirmatory vote.

Constitutional change is usually substantial and far reaching, so when constitutional change is made as a result of negotiation between Governments and politicians with potentially competing interests, we should put the deal they come up with back to the people for a confirmatory vote.

I am delighted to note the support of the First Minister and, indeed, the cabinet secretary, for a people’s vote following the EU referendum, and I agree with their view. My argument is simple: we need a consistent position for all referenda on constitutional issues.

John Mason

Will the member give way?

Jackie Baillie

I am on my last sentence. I am sure that the member will contribute to the debate.

In my view, we need a second, confirmatory vote on any plan that is negotiated.

I move amendment 111.

John Mason

I get the point that, in some cases, we might want a confirmatory referendum, but I question whether we would want to have one in every case. I am particularly thinking of 1997, when we had a clear vote in favour of setting up of this Parliament and for taxation powers.

At the moment, we face a certain amount of voter fatigue. The public is not very enthusiastic about this general election, let alone quite a few others. If we had gone back to the public in 1997 and said, “You made a clear decision, we are implementing it and now we want you to have yet another vote”, I wonder how much enthusiasm there would have been for that.

Alex Rowley

I think that the experience of the 2016 referendum supports this amendment. We still do not know what the outcome will be. Even with Boris Johnson’s deal, it will still take years to negotiate. We might yet still crash out in a year’s time, or in June next year. Because the outcome of the 2014 referendum was no, we did not have a period of negotiation, but when a negotiation is required, only once we have had the negotiations will we know what the deal is.

The Government has introduced the bill in the hope that it can hold an independence referendum next year. If it were to win that referendum, there would have to be—as we now know happened with the Brexit vote—a period of negotiation before the people of Scotland would know what they had actually voted for and what the deal was. Given the experience of the 2016 vote, it makes sense that, once we know what the deal is, we can either confirm that that is what we want or say, “Actually, we were better off where we were”. That is why, on the basis of the experience of the 2016 referendum, this is the right amendment.

John Mason

Is the member arguing that if the details were known before the referendum, as might have been the case in 1997, we would not need a confirmatory vote, but that if the details were not known, as in 2016, we would? If so, we would need a confirmatory vote only in some cases.

Alex Rowley

This bill is about a referendum that the Government wants to hold next year. At that point, we will not know what deal we would get with the rest of the United Kingdom, or whether we will be able to get back into Europe and the consequences of that. I am sure that Mike Russell and I would argue about whether there would be a hard border, although there would be a hard border down the Irish Sea with the Brexit deal.

You would be putting faith in a question without knowing what the outcome would be. It makes sense to me that, once the negotiation has been done and the deal is on the table, the deal is put back to the people and they are told that that is the best deal that we have been able to get.

I am not sure that before 2016 many people understood the complexities of the negotiations and where we would get to. The difficulties and complexities would be exactly the same if the Scottish people voted for independence, and, at the end of the day, that deal might look quite different from what people thought they were going to get. In those circumstances, it seems sensible to put that back to the people and ask, “Is that what you wanted?”

Patrick Harvie

Alex Rowley says that the experience of the 2016 referendum supports this amendment. He is absolutely right in that, but it is perhaps the strongest example of the adage that hard cases make bad law. I think it undeniable that the 2016 referendum process resulted in an utter mess, but that does not mean that we are incapable of having referendums that result in clarity.

There are several problems with amendment 111. First, what does “a constitutional matter” mean? If, for example, the Scottish Government, perhaps working with a citizens assembly or through wider public consultation, were to produce a bill for a new electoral system for the Scottish Parliament, and that system had been worked out in detail and was well understood—it might be politically contested, but it was clear and specific—would such a change in the electoral system or to the number of members in the Scottish Parliament require a confirmatory vote? To require such a vote when the proposed legislation is clear, specific and well understood would be redundant.

There is a political question about what losers’ consent means. John Mason mentioned the devolution referendum that created this Parliament. There were two devolution referendums at that point. One resulted in a very clear outcome in Scotland; the other resulted in an incredibly narrow outcome in Wales. However, the winners in Wales did not say, “Count the votes. You lost. Suck it up.” That is not what losers’ consent means. The side that won reached out to those who were on the losing side to try to understand their concerns and account for those in how they implemented the result. That is how losers’ consent is earned.

It is clear that, had the UK Government taken a similar approach following the 2016 referendum, we would already be outside the EU and still inside the single market in a moderate compromise. I would dislike that, but it would have achieved losers’ consent and some clarity. I might not be happy about this, but the case for a confirmatory vote simply would not exist politically. The question about a confirmatory vote arises only because of the mess and confusion with the EU referendum and not because of a referendum in and of itself, so I do not support amendment 111. However, I consistently support the call to put back the question of the current EU crisis to the people to give them a chance to cancel it altogether.

Tom Arthur

I briefly echo Patrick Harvie and John Mason’s comments: to cite the experience of the 2016 referendum and what followed as justification for a confirmatory referendum is to learn the wrong lessons from that experience.

The mess of Brexit was ultimately a consequence of two factors: first, the lack of a detailed prospectus and the lack of significant time for debate and public engagement beforehand; and, secondly, what followed with regard to implementation by the UK Government, which was characterised by a toxic mix of hubris and incompetence. It would have been perfectly feasible for the UK to leave the European Union in March last year as originally scheduled, but that would have required a different approach from the UK Government, engagement with the devolved Governments and a recognition of the closeness of the result.

There are also issues about the definition of “constitutional matter”. Patrick Harvie’s suggested scenario illustrates that, if there has already been exhaustive debate about and agreement and consensus reached on having a referendum, having another one would be redundant; it would not be required. For those reasons, I am unable to support amendment 111.

Michael Russell

I am sorry to disappoint Jackie Baillie—my support for her amendments was short lived.

The intention is for the bill to set a framework that can provide for future referendums across Scotland. On that basis, it does not seek to prescribe different referendum processes for particular subject matters. Indeed, the committee has specifically rejected that approach. There has been debate and discussion at stage 1 and stage 2 about whether that is possible. I agree with the committee’s conclusion that it is not possible or desirable to do so. To lodge such an amendment at the very end of the process brings back a principle that we had rejected at the start of the process.

There is nothing in the bill that prevents the framework that it would establish being used again on related questions—as ever, that would be a decision for the Parliament, and the Parliament could therefore choose to do so.

Automatic second referenda are not required. There are circumstances in which that would be blindingly obvious. John Mason gave the example of a referendum result in respect of which there is a massive majority. If there was a majority for a proposition of 70 or 80 per cent, it is very doubtful that we would wish to go through the process again.

The flexibility of the process would allow a second referendum, if it was required; for example, if the information that was provided to voters was flawed, as was the case with the EU referendum, as Tom Arthur indicated. In that case, as Alex Rowley said, people had a false prospectus and found themselves making a decision that many of them now question.

A second referendum might be required if circumstances have changed and things are no longer as they were. The commitment to a once-in-a-generation referendum was always qualified by the change of circumstances, and, boy, has there been a change of circumstances with Brexit. Another example would be if circumstances relating to manifesto commitments arise. A party might make a commitment that, if certain actions are taken, such as being dragged out of the European Union against our will, a second referendum will be required.

Given that the amendment conflicts with what the committee has already decided, and that the requirement for a confirmatory referendum as laid out in the amendment would apply in all circumstances—which it should not—I ask Jackie Baillie not to press the amendment.

Jackie Baillie

I intend to press amendment 111, but I will reflect on some of the comments from the cabinet secretary and the committee members. If the amendment falls, I will consider bringing it back in a different form at stage 3. I always understood that imitation was the sincerest form of flattery, and given the First Minister and the cabinet secretary’s comments about holding a confirmatory people’s vote, I thought that the amendment would receive support, and I am disappointed that it has not.

It is slightly hypocritical making the argument that a second confirmatory referendum is required in the case of leaving the EU, while insisting that a major constitutional change to Scotland’s status in the UK—which is a much longer-established union—would not require one.

I understand John Mason’s comments about the enthusiasm for the 1997 referendum and the outcome—it did command considerable support across the parties and across the country, but we can say that with the benefit of reflection.

It is not about planning only for the worst-case or best-case scenarios. Major constitutional issues require consent that is based on what change would mean, rather than on a vague notion such as, as we saw in the EU referendum, taking back control. That was arrant nonsense at the time and it remains arrant nonsense now.

A referendum on constitutional change has far-reaching consequences, and the matter should be put back to the people. I would much rather run the risk of voter fatigue on substantial issues of constitutional change than I would make a change that would harm the country without consent.

I press amendment 111.

The Convener

The question is, that amendment 111 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Bibby, Neil (West Scotland) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)

Against

Arthur, Tom (Renfrewshire South) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Harvie, Patrick (Glasgow) (Green)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 9, Abstentions.

Amendment 111 disagreed to.

Adam Tomkins

Can we have a confirmatory vote on that? [Laughter.]

The Convener

Let me think about that for a moment. The answer is no.

Section 40 agreed to.

Schedule 7—Interpretation

Amendment 75 moved—[Michael Russell]—and agreed to.

Schedule 7, as amended, agreed to.

Sections 41 and 42 agreed to.

Long title agreed to.

The Convener

That brings to an end stage 2 consideration of the bill. The bill, which will be reprinted as amended, will be published at 8.30 am tomorrow. I understand from a motion in today’s business bulletin that stage 3 is set for Thursday 19 December. The deadline for lodging amendments is noon on Thursday 12 December, which is an interesting date for that.

I thank the cabinet secretary and members for their participation during stage 2. The next meeting of the Finance and Constitution Committee will be on Wednesday 18 December.

The Presiding Officer (Ken Macintosh)

The next item of business is stage 3 proceedings on the Referendums (Scotland) Bill. In dealing with the amendments, members should have with them the bill as amended at stage 2, the marshalled list and the groupings of amendments.

The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for that first division will be 30 seconds. Thereafter, the period will be one minute for the first division after each debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak buttons as soon as possible after I call that group.

Section 1A—Referendums to which this Act applies

The Presiding Officer

Amendment 1, in the name of Adam Tomkins, is grouped with amendments 21 and 2.

Adam Tomkins (Glasgow) (Con)

We will be supporting amendment 21, which is the only Government amendment in the group. I will let the cabinet secretary speak to that in due course. I will speak to my amendments 1 and 2. The operative one is amendment 2, which seeks to enshrine what has become known as the Gould principle in this legislation.

Ron Gould, as members will know, was appointed to conduct an independent review into electoral events in Scotland following the combined local authority and Scottish parliamentary elections in May 2007, and he published his report later that year. His recommendations included what has become known as the Gould principle, which is to say that electoral legislation, including legislation on referendums, cannot be applied to any election or referendum held within six months of the new provision coming into force. My amendment seeks to give effect to that principle for the purposes of this legislation. It is not about delaying any referendum on any subject; it is about ensuring that the people who run referendums for us and the people who vote in referendums have enough time to prepare for the referendum and for its effective delivery, whether they are helping to put it on or participating in it.

The Gould principle is widely accepted by electoral administrators: for example, the Finance and Constitution Committee was told by the Scottish Assessors Association that it is important for the effective delivery of a referendum that the rules surrounding the running of it are clear and in place at least six months prior to the referendum taking place. The Electoral Commission is of the same view. It has recommended that all legislation for any future referendums should be clear at least six months before it is required to be implemented. That is to allow sufficient time for campaigners and administrators fully to prepare to comply with the rules once they are in force, but it is also vital for the interests of the people who matter most in referendums, which is to say the people who vote in them. It enables voters to be informed about the issues at stake in the referendum and to have confidence in the process.

That is one of the elements of the gold standard of referendums; we must legislate for referendums so that voters have the fullest possible confidence in the process, leading to a free and fair referendum with a result that has overall legitimacy for the public on both the winning and the losing sides.

In its report on the Scottish independence referendum in 2014, the Electoral Commission highlighted the benefits of the legislation being clear, not just six months but, in that case, nine months before the referendum date.

All that has been accepted by the cabinet secretary, who gave evidence to the Finance and Constitution Committee on the bill a few weeks ago. He accepted in his evidence, as the committee recorded in its report, that six months is the gold standard. The amendments in my name in this group are designed to give effect to the Gould principle, which ought to be one of the fundamental principles of our electoral law, and which is simply to say that all the rules must be in place six months before any electoral event that occurs under those rules. That is the force of amendments 1 and 2.

I move amendment 1.

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

It is important to say at the outset that the vast majority of the amendments that will be debated this afternoon are on technical matters. There will be two debates on political matters of some import, but I hope that the chamber can come together on many of the issues that will be discussed. Those were ventilated greatly at stage 2, and solutions were found to issues that were raised at that stage. That will become apparent.

I should also say what this bill is, because I want to make that absolutely clear. This is a framework bill for referendums. It is not about the approval of a specific referendum. The approach that the Scottish Government took to the bill from the very beginning was to say, “Let us put a framework in place, and then let us approach that framework with not even secondary legislation but a shorter bill that confirms the subject, the question and the date.”

In supporting this bill, all that is being supported is the principle that there will be a piece of legislation that allows and organises referendums. That will become important in a second when I address the amendments.

As Mr Tomkins said, I addressed this issue during the stage 1 evidence sessions on the bill, and I stand by the comments that I made at that time. I think that the six-month period is a reasonable one, but I am not absolutely committed to it in all circumstances, for a variety of reasons.

Some referendums may not necessarily need that long, depending on the topic. There are global examples of referendums that take place comparatively quickly, on comparatively minor matters. To tie a referendum absolutely to six months is not necessary.

The second issue, which Mr Tomkins raised, is about ensuring that administrators have adequate time to know the rules and regulations. This is, as I said, a framework bill. It contains the rules and regulations—there will be no changes to this bill after stage 3, so people will know, from now on, what those are.

Adam Tomkins

This is an important point. It is now the case that any future referendum on a devolved matter in Scotland will require an act of this Parliament. Such an act authorising any referendum on any future devolved subject at any point in the future will, of course, be able to amend this bill. So, it is not quite the case that this bill cannot be amended after today, because this bill could be amended by any future enactment that triggers and authorises a referendum on a devolved matter in Scotland.

Michael Russell

The principle of this bill is clear and has been accepted by the committee. This is the framework to which other details of a referendum can be plugged in. This is how referendums will be run in Scotland. The administrators and others will know how referendums will be run in Scotland. In a sense, we are catching up, because some of those rules and regulations are in the equivalent Westminster legislation from 2000.

Of course, the last time a referendum was organised in Scotland by the Scottish Parliament, a different approach was taken and everything pertaining to that referendum was in that bill. This time, we know how referendums are going to operate. The key point is that administrators and others will know how referendums will be run—they will know the rules. Therefore, the period of six months is not an issue for those matters.

The Government has also set a 10-week referendum period—we agreed to that at stage 2. There are a number of weeks included in appointing designated campaigns. Nothing is being rushed in connection with any potential referendum. The date of any future referendum will be set out in primary legislation, giving Parliament the ability to amend or move the proposed date if it felt that it was too soon.

I urge members not to tie the hands of every subsequent Administration—or of every subsequent request to an Administration—with an absolute. Nobody is in any doubt that proper time should pass. That is confirmed here, and in the detail that the bill gives about the referendum period, but to tie it absolutely to six months is not only unnecessary but unhelpful.

Amendment 21 will make a minor but valuable technical amendment, to put beyond any doubt—by putting it in the bill—that it is intended that the act should apply only to a referendum that is held under an act of the Scottish Parliament. That will become relevant later this afternoon when we consider what might happen if dates clash in relation to a referendum. I am glad that Mr Tomkins indicated that he will support amendment 21.

I ask members not to support amendments 1 and 2, in Mr Tomkins’s name, because they create an absolute that I do not think is required.

Patrick Harvie (Glasgow) (Green)

I ask Mr Tomkins—if he is listening; I am not sure that he is—to clarify, when he winds up the debate on group 1, exactly what he intends. If we agree to amendments 1 and 2, am I correct in assuming that if the Scottish Government subsequently introduces a bill for a specific referendum sooner than six months before the bill that we are considering has received royal assent, the framework in this bill will not apply and the bill to establish the referendum will have to copy and paste all the rules that are in the framework bill? In effect, the people who administer and participate in the referendum will not have clarity until the subsequent, referendum bill has passed.

If that is correct, surely the way to achieve clarity about the rules at the earliest time and for the longest period is to ensure that the framework bill that we pass today applies, instead of bringing all the work in the bill into further doubt and confusion.

Adam Tomkins

I am grateful to Patrick Harvie for making that point. My point is simply this: we had a problem in Scotland in 2007, when multiple electoral events took place on the same day, and we invited an independent investigator to report on that for us. He concluded that it would be appropriate for the law to reflect the principle that the rules should be set six months in advance of any event taking place under those rules. Given our history with elections and referendums in Scotland, it behoves us to consider and reflect on those recommendations.

I do not think that there should be a referendum on any subject in Scotland within the next six months under the rules in the bill, because I think that the rules in the bill need to be understood as fully as possible by the people who help to run referendums on our behalf and by the people who vote in referendums, and all the expert testimony is that that takes a minimum of six months. That is the proposal that I think should be the opening provision of the bill.

Patrick Harvie

Let me be very clear. What Adam Tomkins is suggesting is that if—and it is a big if—a referendum were to be proposed within that time period, the rules should be set later rather than earlier; the rules should be set in the subsequent bill, rather than today.

Adam Tomkins

No. The rules should be those that apply under this bill, but no such referendum should be held within six months, because that is what the Gould principle means.

During a number of the debates that we will have this afternoon, we will hear references not to the Gould principle but to the gold standard. It seems to me that, with this bill, we are trying to enact state-of-the-art referendums legislation for Scotland that looks to the future—and therefore needs a degree of flexibility, which we will talk about in the debates on later groups of amendments—and which needs to reflect the best possible national and international practice on the running and holding of referendums.

The key element of that, surely, is that we must all put voters’ interests first. That is what the Electoral Commission is there for. The Electoral Commission is there to identify the best interests of voters, and it has said that it supports the Gould principle and it is in the interests of voters that referendum and election rules are set in legislation and are clear at least six months in advance of any referendum or election taking place under those rules.

If we are serious about trying today to enact the best possible legislation for referendums in future in Scotland, we should be supporting rather than resisting amendments such as amendments 1 and 2.

I press amendment 1.

The Presiding Officer

The question is, that amendment 1 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

We will move to a vote after a five-minute suspension in order to call members to the chamber.

The Presiding Officer

We move to the division on amendment 1.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Griffin, Mark (Central Scotland) (Lab)
Harris, Alison (Central Scotland) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Sarwar, Anas (Glasgow) (Lab)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 54, Against 67, Abstentions 0.

Amendment 1 disagreed to.

Amendment 21 moved—[Michael Russell]—and agreed to.

Amendment 2 moved—[Adam Tomkins].

The Presiding Officer

The question is, that amendment 2 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Griffin, Mark (Central Scotland) (Lab)
Harris, Alison (Central Scotland) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Sarwar, Anas (Glasgow) (Lab)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 55, Against 66, Abstentions 0.

Amendment 2 disagreed to.

Section 3—Referendum questions

The Presiding Officer

Amendment 6, in the name of Michael Russell, is grouped with amendments 7, 3, 8, 9 and 10. If amendment 3 is agreed to, I cannot call amendment 8, as it will have been pre-empted.

Michael Russell

The issue of question testing has been the most difficult and, probably, the most divisive issue in the bill. We have debated the issue at length, and the Government agreed concessions at stage 2 in an attempt to make the framework workable and agreeable to Parliament.

Today, I have brought forward further enhancements to the proposal that was accepted at stage 2 by the committee. I am pleased to say that they follow further discussions with the Electoral Commission, which has indicated that the amendments will enable Parliament to seek advice whenever it wishes to do so. That addresses the commission’s concern at stage 2.

Amendments 6 to 10 will require the Electoral Commission, where its views on the wording of a referendum question have been requested either by the Scottish Government or by Parliament, or when it is consulted before the lodging of a motion to extend the validity period of a question from the preceding session of Parliament, to lay its views before Parliament as soon as is reasonably practicable, and to publish those views. The commission will therefore be in a position to respond not just to the Government but to Parliament on those issues. It is standard practice for the commission to publish its views, but including a duty to publish, as we will do in the bill, means that the process can be seen to be entirely transparent.

Amendments that were agreed at stage 2 require ministers to lay a report before Parliament stating any views that have been expressed by the Electoral Commission as to the intelligibility of the question. However, on reflection and after discussion with the commission, I have agreed that the commission should offer its views direct to Parliament. Amendments 6 to 9 therefore provide for that.

Amendment 10 would allow Parliament, through a resolution, to consult the Electoral Commission on the wording of a question. Again, that will allow Parliament at any time to seek a view as to whether a question remains valid, and to seek the commission’s expert advice on the intelligibility of the question. That responds to a request from the commission and will adjust the amendments that were made at stage 2.

I hope that members will acknowledge the major concessions that the Government has made on the issue, with the aim of achieving cross-party agreement. Members will also note that the Electoral Commission has said that my amendments will enable Parliament to seek advice

“whenever it wishes to do so”,

thereby fulfilling the request that the commission made after stage 2. I therefore urge members to support amendments 6 to 10.

I am disappointed that Adam Tomkins has lodged amendment 3, when his stage 2 amendment that would have required all questions to be tested, even if they had previously been tested in the same session of Parliament, was rejected by the lead committee. At stage 2, Mr Tomkins made the point that we must make sure that we do not bypass the Electoral Commission: my proposals absolutely fulfil that requirement. The Electoral Commission is central to my proposals, but a blanket requirement for all questions to be retested, instead of the commission being asked for its views, is not necessary. The bill will ensure that the commission is able to provide its expert advice to Parliament. If the commission’s view is that a previously tested question requires further testing, the Parliament can request that the commission do that.

Given that the Finance and Constitution Committee agreed with the principles of my proposal at stage 2, and that further adjustments to that proposal have been welcomed by the commission, I ask members—

Neil Findlay (Lothian) (Lab)

I will make an appeal to the cabinet secretary. If he seeks to bring people on board and to build consensus, he is going about it exactly the wrong way by seeking to manipulate the situation and the question. I say to him with 100 per cent sincerity that if he seeks to bring members on board, he must be seen to be 100 per cent straight on this. Seeking to manipulate the situation will have the opposite effect.

Michael Russell

With respect, I say that I do not think that Mr Findlay has listened to the points that I have made. I want to make it clear that I have moved a considerable distance in order to ensure that not only the Government but Parliament can seek permission, and that any question will expire. The only small area of difference between us is on whether the same question could be used within the same parliamentary session.

I will give Mr Findlay two examples of why that is necessary. If a bill to hold a referendum were to be passed in the first year of a parliamentary session and, for some reason, that referendum was delayed, the same question could be asked throughout that parliamentary session. A question must expire at some stage: it could not be reused in a subsequent session without Parliament specifically supporting that.

Why would a question be reused? We need to look at the evidence on that. Sometimes—as I said at the start of the process—questions have validity and are well understood: opinion poll evidence on that is absolutely unequivocal. A question that is well understood, recognised and used repeatedly, for example in opinion polling—

Adam Tomkins

Will the cabinet secretary give way?

Michael Russell

I want to finish the point.

It is absolutely obvious that such a question would be something that the public would know about. Even so, I have accepted the right of Parliament and the Electoral Commission in that context. Nobody can hide from the fact that the commission will be able to say what its position is. I am absolutely sure that if the commission says that the question should be tested again, Parliament and the Government will agree with it. Far from avoiding things, we have accepted everything that has been put to us.

Adam Tomkins

This is the most crucial point in this afternoon’s proceedings. If what the cabinet secretary says is true—if there are referendum questions that are clear and well understood by the public—what does he have to fear?

Michael Russell

I have absolutely nothing to fear. The commission has made it clear that it is “satisfied” with the process. As I said to Mr Tomkins at general question time, the word “satisfied” is in the commission’s briefing.

In all the circumstances, we have taken a sensible and commonsense approach. We have given way to Parliament and the commission—we have listened to the arguments and put forward a reasonable position.

Mike Rumbles (North East Scotland) (LD)

Will the cabinet secretary give way?

Michael Russell

I will not, at the moment.

I am asking Parliament to be reasonable about the progress that we have made, and not to be unreasonable. I have to say that, so far, Mr Tomkins has not been reasonable, but I hope that other parties will look at what we are proposing and realise the progress that has been made, which is overwhelming.

Mike Rumbles

Will the cabinet secretary give way?

Michael Russell

If I must.

Mike Rumbles

I thank the cabinet secretary for giving way, but what he said about the Electoral Commission is just not true. In its letter to all MSPs, it says:

“we continue to be of the view that should a future referendum on Scottish independence be brought forward, the Commission should be required to reassess the question regardless of whether”

it has been asked previously.

Michael Russell

I am sorry, but the commission says that it is “satisfied” with the progress that has been made. That is clear from the document. Members are, in order to take us back to where we started, ignoring the progress that has been made and the fact that Parliament and the commission will have those rights. That is not a sensible position to take.

I ask members to think very carefully, because my amendments represent a major step forward and several major concessions by the Government. I hope that members will support my amendments, as pragmatic recognition of the progress that has been made, and that they will not revert to political type—which, unfortunately, is what we have seen.

I move amendment 6.

Adam Tomkins

At stake here is a very simple principle that has applied to every referendum that has been held in the United Kingdom since the creation of the Electoral Commission. The principle is that ministers propose referendum questions, the Electoral Commission tests those questions, with the interests of voters being put first, then Parliament decides, on the basis of recommendations that are made to us by the Electoral Commission. The cabinet secretary is seeking to rig the rules, which is completely unacceptable.

Throughout this entire process, the Electoral Commission has been robust, fearless and entirely consistent. Earlier in the process—at stage 1—the Electoral Commission said that it

“firmly recommends that it must be required to provide views and advice to the Scottish Parliament on the wording of any referendum question ... regardless of whether we have previously published our views on the proposed wording.”

We are now at stage 3, and the cabinet secretary, both at general question time earlier and in this debate, is wilfully misleading Parliament about what the Electoral Commission is saying. In its briefing, the Electoral Commission says:

“we continue to be of the view that should a future referendum on Scottish independence be brought forward, the Commission should be required to reassess the question regardless of whether it will take place within the”

so-called “validity period” of the cabinet secretary’s imagination. It says that that

“will ensure confidence in the legitimacy of the referendum result.”

Only one amendment in the group would give effect to the independent Electoral Commission’s view. That is amendment 3, which is in my name. The amendments in Mr Russell’s name continue to do him quite a disservice, because they are dishonourable. He is trying to rig the rules of a future referendum in this country to suit his partisan interests. The Parliament’s Finance and Constitution Committee unanimously recommended that he should not be allowed to get away with that. The committee unanimously recommended that Mr Russell should seek the “agreement” of the Electoral Commission—not its satisfaction, although it is not really “satisfied”—before stage 2. He manifestly failed to do that. He has not even sought, achieved or attained its agreement before stage 3. The Electoral Commission is not “satisfied” because, as the bill stands, reassessment of the intelligibility of a referendum question that has been used previously will not be required. Why is that the cabinet secretary’s position? He thinks that the position suits the Scottish National Party, but it does not suit voters.

As I said earlier this afternoon, if we are serious about passing legislation on referendums that meet the highest international standards of best practice, Parliament will accept my amendment and reject all of Mr Russell’s amendments in the group. This Parliament should not stand for rigging of future referendums.

Mike Rumbles

The Liberal Democrats support amendment 3, in the name of Adam Tomkins, because that is the right thing to do. On this issue, the Electoral Commission, in its stage 3 briefing—every MSP has received it, so we cannot pretend that we do not know this information—clearly says it continues

“to be of the view that should a future referendum on Scottish independence be brought forward, the Commission should be required to reassess the question regardless of whether it will take place within the ‘validity period’. This will ensure confidence in the legitimacy of the referendum result.”

Surely that is what we all want.

This is a very serious issue—it is no small matter. The Electoral Commission’s view is that any future question will need to be assessed, and that a question that has previously been asked will have to be reassessed in the light of experience.

All framework bills should have support from across the chamber. This bill should not be controversial but, unfortunately, the SNP Government and Mike Russell have made it a partisan issue by trying to circumvent the Electoral Commission’s input on a question that the Scottish Government wants to re-ask. The cabinet secretary is being deliberately disingenuous about what the Electoral Commission is saying to us. We all know what it is telling us: it is not what Mike Russell has said. That clear attempt at manipulation is not acceptable—it should not be acceptable to any member. Agreement to amendment 3 is essential in order to right that wrong.

The very idea that a “validity period” is needed is nonsense. That is simply designed to enable the SNP Government to fix the question that it wishes to put. That undermines the whole bill. If amendment 3 does not succeed because the two parties in the chamber that are supportive of it—I assume that the Greens support it; I would love to be convinced that they are listening to the argument—

John Finnie (Highlands and Islands) (Green)

We are listening.

Mike Rumbles

That is good; I am pleased that the Greens are listening. Maybe I was doing them a disservice, but I would like to hear what they have to say about the matter.

The SNP Government is certainly trying to fix things. The very idea that MSPs have to articulate such concerns should be a worry to everybody in the chamber. The mask of nationalism has really slipped—[Interruption.] It has. The whole idea of a “validity period” for the question to be asked is an attempt by the SNP Government to win any future referendum by hook or by crook.

Amendment 3 would restore the bill to what it should be—an agreed framework bill. If Amendment 3 is not passed, the Liberal Democrats will oppose the bill at decision time.

Alex Rowley (Mid Scotland and Fife) (Lab)

If the SNP and Green members do not support Professor Tomkins’s amendment 3, they are setting up the bill not to be the gold standard of referendums, but legislation that has been put through in order to rig the question. That is the reality of the situation. I cannot, for the life of me, understand why the Government will not listen to the overwhelming expertise and advice that has been given.

On the issue of question testing, expert advice has been clear. At stage 1, the Electoral Commission told the Finance and Constitution Committee that it strongly believes that it

“should be asked to test the question”,

even when that question has been asked before. Its view was 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.”—[Official Report, Finance and Constitution Committee, 18 September 2019; c 37.]

Who would object to that? I ask myself why anyone would ignore that advice and the answer must be that they want to have the opportunity, if needed, to rig the question.

The Law Society noted that it would be very concerning if it was assumed that,

“once approved, the wording of the question is suitable for ever.”

At stage 2, the Government rejected Opposition amendments and amended the bill to create the “validity period”, which represents a period of time during which the question is subject to less scrutiny by the Electoral Commission—that is not acceptable. If best practice is not the Government’s key concern, we must assume that it is seeking to circumvent proper process.

We will support Adam Tomkins’s amendment 3 to delete the “validity period”. [Interruption.]

Members can sit in the Parliament and shout and hee haw all they wish, but at the end of the day if we are going to have a referendum bill, it has to be fair and transparent. No political party in the Scottish Parliament should be able to rig a referendum question. [Interruption.]

The Presiding Officer

I call Patrick Harvie. [Interruption.] Order, please!

Patrick Harvie

Thank you, Presiding Officer. I could not hear you call me the first time for the sound of the demands for the end of partisanship in the chamber, which were ringing in all our ears.

I wish that the bill was not being seen as a partisan issue. Framework legislation on referendums is something that we should be able to agree on. I assure Mike Rumbles that I have listened to the arguments, not only on this aspect of the bill but on all aspects of the bill. I hope that those who have engaged actively in the committee process would recognise that, from the start of the bill process, I have publicly urged the cabinet secretary to give ground and to respect the independence of the commission. He has given some ground.

There are three relevant paragraphs in the Electoral Commission briefing that we have all received. There have been calls for an end to partisanship, but using the rhetoric of “rigging the rules”, “manipulation” and “the mask of nationalism”, which is the language of performative partisanship, does not help. The three paragraphs—[Interruption.]

I have been accused of not listening to others—perhaps other members ought to be listening. The briefing contains three key paragraphs, the first of which says:

“the Electoral Commission is concerned to ensure that Parliament is able to access the Commission’s independent advice on the intelligibility of a proposed referendum question at any point it requests it”.

If we had not achieved a position that ensures that the Parliament will be able to access that advice, I would not be recommending to my colleagues that they vote in favour of the bill. We have achieved that position.

Mike Rumbles

Will the member give way?

Patrick Harvie

I will in a moment.

Some people are choosing to interpret what they like about one or other of the paragraphs. The second paragraph says:

“we are satisfied that the Government amendments on the question assessment process will enable Parliament to seek our advice whenever it wishes to do so, and the Commission will be able to put our views directly before Parliament.”

The third paragraph says:

“we continue to be of the view that should a future referendum on Scottish independence be brought forward, the Commission should be required to reassess the question”.

That can happen: under the bill, as amended by the Government, that requirement can be imposed by the Scottish Parliament. It will be for the Scottish Parliament to make that determination at any time when a bill is brought before it to establish a specific referendum.

Daniel Johnson (Edinburgh Southern) (Lab)

Will the member take an intervention?

Patrick Harvie

I indicated that I would give way to Mike Rumbles. If there is time, I will come to Daniel Johnson afterwards.

Mike Rumbles

The Electoral Commission said that

“the Commission should be required”

by the bill

“to reassess the question regardless of whether it will take place within the ‘validity period’”.

I think that Patrick Harvie is incorrect. According to the bill, if such a referendum came forward during the current session of Parliament, it would still fall under the validity period.

Patrick Harvie

I draw Mike Rumbles’s attention to the paragraph as it is written:

“However, we continue to be of the view that should a future referendum on Scottish independence be brought forward, the Commission should be required to reassess the question”.

It does not say that that should be in the bill. Any referendum that is established will be established by a subsequent bill—by a piece of legislation that the Parliament will be able to vote on. The Parliament’s ability to make that requirement of the Electoral Commission will be unchanged.

We should recognise that the commission is satisfied with the changes that have been made to the bill. Simply to delete whole sections on which the commission’s concerns have been satisfied would be more worthy of words such as “manipulation” than are the actions that others have used such words for.

Daniel Johnson

With the greatest of respect, there is a difference between the words “can” and “must”. Either we believe that the Electoral Commission is an important part of this process as an arbiter of fairness, or we do not. If we believe that it is, there must be a requirement that it acts as such an arbiter.

Furthermore, this boils down to whether, if a question is tested once and deemed to be valid, it is valid for all time and in perpetuity. Patrick Harvie argues that the context of a question is of no interest and no import whatsoever, and that cannot be right. Culture changes, understanding changes and context changes, and when they do, the question changes. That is why a question would have to be retested, regardless of whether it had been tested before by the Electoral Commission. That is what is at stake. I would be grateful if Patrick Harvie could respond on that point.

Patrick Harvie

I think that if Daniel Johnson is using phrases such as “in perpetuity” or “for all time”, he might be misreading what is in front of us. I do not think that that is being proposed.

The proposal is that it will be for this Parliament, in passing legislation that establishes any specific future referendum, to decide whether it wishes to require that commitment. It will still be within our power, or the power of any subsequent Parliament, to do so.

I am satisfied, as the commission is, with the changes that have been made. I fear that some people—perhaps predictably—are turning the bill into a proxy for issues that are way beyond framework legislation for referendums in general. I will oppose Mr Tomkins’s amendment.

Michael Russell

I want to take some of the heat out of this. I said at the start that it has been divisive, and it remains divisive, so I want to stick to the facts of the matter.

Patrick Harvie is right that it is entirely possible for the third paragraph of the section on question testing in the Electoral Commission’s briefing to be used in the legislation to allow that test. The question arises about what the commission asked to happen and what has happened. I have moved substantially on all the issues; there is no doubt about that.

If we start at the beginning, at stage 1 the committee asked me to do things for stage 2. We entered into discussion and we made proposals, and the Electoral Commission suggested further changes to those proposals that we then accepted. All the proposals have been accepted.

On the issue of whether a question should always be tested, the point about “in perpetuity” is a misreading, to put it as kindly as I can, of what the legislation says. The legislation means that, within a single parliamentary term, the question can continue to be valid during that term; that is all it means.

Mr Rumbles is also wrong to say that a question is still valid. There is no question that is still valid in Scotland, because no question has been passed in the current parliamentary term. There is no valid existing question. Should there be a recommendation to use the same question again—

Alex Rowley rose—

Michael Russell

Let me make this point; it is really important. Should there be a recommendation to use the same question again, the Parliament will have the right to say to the Electoral Commission that it should be tested, and it will be able to be built into existing legislation. There has been considerable movement forward.

I will not react to some of the over-the-top remarks that were made by Mr Tomkins. This is a serious bill, with serious intent. In my view, the only small area of difference is around whether a question would continue to have validity in a single parliamentary term—that is the issue.

Mike Rumbles

Will the cabinet secretary give way on that point?

Michael Russell

No—I have heard Mr Rumbles’s arguments. We are at the stage of making a decision on whether that point is worth this decision, or whether—in actual fact—the commonsense understanding is that language does not change, and that meaning does not change, in the period of four or five years. To suggest that they do is—I am afraid—to exaggerate beyond anything that I could accept. As such, I will press my amendments.

Amendment 6 agreed to.

Amendment 7 moved—[Michael Russell]—and agreed to.

Amendment 3 moved—[Adam Tomkins].

The Presiding Officer

I remind members that, if amendment 3 is agreed to, I cannot call amendment 8. The question is, that amendment 3 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Davidson, Ruth (Edinburgh Central) (Con)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Griffin, Mark (Central Scotland) (Lab)
Harris, Alison (Central Scotland) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Sarwar, Anas (Glasgow) (Lab)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 54, Against 67, Abstentions 0.

Amendment 3 disagreed to.

Amendments 8 to 10 moved—[Michael Russell]—and agreed to.

After section 3

The Presiding Officer

We turn to group 3, which is on the power to change the date of a referendum if there is a United Kingdom election on the same date. Amendment 22, in the name of the cabinet secretary, is the only amendment in the group.

Michael Russell

I hope that this amendment will steer us into calmer waters. During the discussion at stage 2 on Adam Tomkins’s amendment 80, which identified issues around there being two polls on the same day, I undertook to discuss ways of avoiding such a situation. Mr Tomkins subsequently agreed to withdraw his amendment. In line with that undertaking, Mr Tomkins and I met and discussed ways in which we could avoid two polls—one of which would be outwith the control of the Scottish Parliament—falling on the same day. Amendment 22 gives effect to the outcome of those discussions.

If, for whatever reason, a poll is set for the same day that has been set by this Parliament as the date of a referendum, in the first instance, I would expect this Parliament to consider whether there is a need to change the date of the referendum. However, there is a slight possibility that a situation may arise where this Parliament is not in a position to make such a decision: that is, if there is an early Westminster general election, the date of such a poll may be set with little notice. Therefore, this amendment allows for the Presiding Officer to delay the date of a referendum by up to six weeks if the Parliament is either dissolved or in recess and cannot, for whatever reason, be recalled to make a decision. The Presiding Officer will, following consultation with the Electoral Commission, have the power to appoint by statement a new date for the referendum that is no later than six weeks after the original date.

Members will appreciate that the need to use the power is very unlikely to arise. However, I brought forward the amendment to address the concerns that were expressed by members about the risk of two polls falling on the same day. Taken together, the options mean that there is no reason why the date of a referendum should fall on the same day as another national poll unless—this is important—there is a positive decision by this Parliament for that to take place. I hope that members will agree that amendment 22 addresses the concerns that were expressed by the Parliament.

I move amendment 22.

Adam Tomkins

I am satisfied with amendment 22. There is no “however”.

Michael Russell

I am delighted to hear the word “satisfied” used.

Amendment 22 agreed to.

Section 29—Report on the conduct of the referendum

The Presiding Officer

Amendment 4, in the name of the cabinet secretary, is in a group on its own.

Michael Russell

During the stage 2 proceedings on 27 November, James Kelly agreed not to press amendments 108 and 109, which would have required the Electoral Commission to consult the Equality and Human Rights Commission and to include its representations in its report on the conduct of a referendum. Mr Kelly’s decision was probably due to concerns around requiring consultation of only one particular body rather than a range of bodies. I would have had no objection to Mr Kelly’s proposed amendment 108 had it said that the Electoral Commission was expected or required to consult a range of bodies. In keeping with that view, I have brought forward amendment 4 to require the Electoral Commission, when drafting its report, to consult a range of bodies. We considered whether a specific list of bodies or individuals to consult would be appropriate but, since there could be a referendum on any subject, it is not possible to produce a definitive list. Therefore, I have deliberately left the Electoral Commission with flexibility to consult those bodies that it thinks might have an interest in a particular referendum.

However, it is already normal practice for the Electoral Commission to consult widely when drafting a report on any electoral event. My amendment simply gives statutory effect to something that already happens in practice. I hope that members will agree that, when the Electoral Commission is drafting its report, consultation with the relevant persons is appropriate and that, therefore, they will support the amendment.

I move amendment 4.

Amendment 4 agreed to.

Section 37—Power to modify this Act

The Presiding Officer

Amendment 11, in the name of Adam Tomkins, is grouped with amendment 12.

Adam Tomkins

As we have heard, this bill is forward facing. It is framework legislation for referendums to be held in the future in Scotland. As introduced, section 37 would give ministers broad powers to amend the bill in the future—by order or regulation—in order to take into account developments elsewhere in electoral law.

The Finance and Constitution Committee recognised that, for it to be modified in that way in the future, the bill needed a degree of flexibility and dynamism. At the same time, in order that we have effective and robust parliamentary scrutiny of those order-making powers, Parliament’s interests needed to be more fully safeguarded than they were in the bill as introduced. Unlike its position with regard to question testing, the Government has been constructive in engaging with Opposition members on that question.

Amendments 11 and 12 have been prepared in co-operation with the Government; I thank the cabinet secretary and his officials for that. The amendments do not prohibit ministers from making future modifications—by secondary instruments—to provisions of this legislation, but they ensure that, in that process, Parliament’s interests, as an effective and robust scrutineer of Government policy, are protected.

I move amendment 11.

Michael Russell

I welcome amendments 11 and 12. As Mr Tomkins said, I gave an undertaking to discuss with him how we might widen the range of bodies that should be consulted. Amendments 11 and 12 put what is normal practice on to a statutory footing. Changes to electoral legislation are already shared widely with the electoral community. The Government welcomes comments from anyone involved in elections and, now, referendums.

However, just because a body or individual is not included in the formal consultation, it does not mean that they have not had the opportunity to contribute at an earlier stage of the process. The formal consultation takes place once the regulations are available in draft form, which occurs at the end of the consultation process, before regulations are laid.

Amendments 11 and 12 address the issue that was raised at stage 2 and do so to the satisfaction of the member who raised them. Therefore, I encourage members to support them.

Amendment 11 agreed to.

Amendment 12 moved—[Adam Tomkins]—and agreed to.

After section 39

The Presiding Officer

Group 6 is on the consultation on the role of referendums in the democratic process. Amendment 23, in the name of Patrick Harvie, is the only amendment in the group.

Patrick Harvie

I lodged amendment 23 with the intention of airing some issues for debate, rather than pressing it to a vote. I want to make that point clear at the outset.

In among the sound and fury of some of the issues that we have disagreed on, there have occasionally been some interesting and deeper debates about challenges to our democratic process and some of the questions that cannot reasonably be fully resolved in this bill. Overwhelmingly, the evidence has been in favour of the idea of a framework bill for referendums, but it is clear that that is not sufficient as a vehicle to address some of the wider and deeper questions about the state of our democracy.

We also have two pieces of legislation on the subject of elections going through the Parliament at the same time. They are necessary pieces of legislation, but are not adequate to address those deeper questions. Some of the questions came up in, for example, the amendments on false statements that I moved during stage 2 in the committee. We know that it is a criminal offence to make false statements about a candidate during an election, but that restriction and requirement for honesty during the electoral process and in campaigning does not apply to the issues in an election; nor does it apply to the issues in a referendum. The offence of making false statements about candidates has no equivalent in relation to referendums.

I understand the reasons why the proposals that I made at stage 2 were not supported by the committee or the Government. The questions require deeper thought. Some of the contributions that Adam Tomkins made at stage 2 explained why false statements about candidates may once have been more relevant than they are now, as the focus on individual candidates and local campaigning was much more prominent in previous generations, compared with today’s focus on national issues and figures.

There were also discussions about the regulation of online and offline activity and campaigning. Even though we have seen some progress in this area—we will debate the matter later—we must recognise that how we regulate online campaigning is based on models that were designed for the needs of the previous century. We do not yet have answers to a lot of these questions.

As well as that, there is the interaction of the different forms of democracy that operate in Scotland. We have representative democracy—we are here within a representative democratic chamber—and we also have direct democracy in the shape of referendums. The story of the last few years of turmoil in the UK has, in some ways, been about the conflict between direct and representative democracy and about what happens when those two systems clash. I am pleased to say that we are also now exploring greater use of deliberative democracy through the use of citizens assemblies. There are questions yet to be resolved about how we expect representative, direct and deliberative democratic processes to interact and what their relative roles will be.

I have lodged this amendment to give the Government an opportunity to reflect on what it thinks should be the vehicle for consideration of these issues. Frankly, I am not fixated on whether there should be a consultation, a committee inquiry, a piece of work through the Scottish Law Commission, or discussions with the Electoral Commission, but there needs to be some vehicle for debating the wider issues. There are fundamental vulnerabilities to our democratic processes in the 21st century that have not been, and cannot be, addressed by the bill. I am keen to hear the views of the Government and other members on how we go about addressing the wider questions that cannot be resolved in the bill.

I move amendment 23.

Michael Russell

One of the positive aspects of the bill and its outcomes has been some of the debate that arose in committee about what our democracy should be doing and how we should move forward in legislating for, without restricting or discouraging, participation in our democracy.

Mr Tomkins has also raised those issues, asking useful questions about what referendums would be for; how that would fit with other developments such as, as Mr Harvie suggested, a citizens assembly and direct, deliberative democracy; and how, as a Parliament and parliamentarians, we might properly consider those matters, reflect upon them and move them forward. I am very sympathetic to that and I am grateful to Patrick Harvie for lodging amendment 23 to at least raise the issue within the context of the bill and see how we could move forward.

I will say a word or two in a moment about some of the detail of amendment 23 to point out its difficulties. However, during the general election that has just taken place, there was clearly documented activity of a leave activist encouraging online advertising, in support of parties, that was designed to split the anti-Tory vote. In other words, it was false-flag campaigning. That will be very hard to regulate, but it is there and it is happening now. Some of the issues that we have considered on digital imprints, which we will consider again shortly, reflect an aspect that we need to talk about.

Above it all, however, is the use of falsehood and false news. Above it all, is saying things that are demonstrably untrue and designed to undermine the democratic process and to make points that deflect people from considering real and serious issues. We must consider how that will affect our democracy. The Scottish Law Commission has been undertaking a review of electoral law, including assessing whether electoral law is modern, simple and fit for purpose. That is not the entire remit for this area, but it is a start. That report is due in early 2020. It would seem to me inevitable and immensely desirable that committees of this Parliament should look at that report. It will be for the Parliamentary committees, but they might want to look at it in a wider context and consult on that report as the start of a process in which they ask how we can tackle some of these issues.

The present electoral law that deals with false statements about candidates is used, but it is no longer adequate or fit for purpose, because there are other issues that have arisen out of it. We understand where that came from, but what we might do next on what we might call the frontier of electoral law, given the changes that we see taking place, is very important indeed. I am therefore very happy to encourage a process in this Parliament—and support it in any way that I can—that takes those issues on and begins to move them forward. That process would also ask, as amendment 23 suggests, about the role of referendums; the issues for citizens assemblies and how those interact with this Parliament and the use of referendums; the regulation of campaigning and using social media and online media; and criminal penalties and the effect of false campaigning on the validity of a referendum result. All those matters need to be looked at. If we can find a process to do that, it will be supported.

We must also be aware that we must not do anything to narrow or restrict democratic participation, or to make elections harder to run. For example, amendment 23 suggests that consultations should be started within three months of royal assent for the legislation, but that would probably be far too tight a timescale and we would need to have a longer period. On amendment 23’s suggestion of laying a copy of any consultation before the Parliament, again, that is perhaps too restrictive and a parliamentary committee might want to recommend legislation of some sort or another, so there would be consultation anyway.

I am keen to help and I support talking about amendment 23’s proposals further and coming to conclusions after looking at the evidence and ensuring that we understand what we need to do. I hope that Mr Harvie recognises that, and I can see signs of assent coming from other parts of the chamber. Actively supporting such scrutiny is important. I understand that Mr Harvie does not intend to pursue amendment 23, but that will be not the end but the start of the process. I can give him that assurance.

Patrick Harvie

It is probably the case that at the start of devolution and the Scottish Parliament, just over 20 years ago, the general view might have been that the democratic process was generally a reserved matter. We had not yet legislated on local elections, we did not have the power to legislate in relation to Scottish Parliament elections and “referendum” was not yet the mot du jour, shall we say. Clearly, we are now at the point at which this Parliament has responsibility, which it has gained incrementally, for the democratic process and its robustness and fairness. It is also clear now that there are severe threats to that democratic process. We could be at the point at which we start to see our democratic process go even further down the rabbit hole of untruth and conspiracy theories, with not only the lack of transparency in online campaigning, but data harvesting and manipulation that is either illegal or unethical and which greatly enhances the power of those in our electoral process who have money and the will to hide where they get their money from.

We are all aware of threats of international manipulation and attacks against our democratic process. We could be at the point at which we see our democratic process continue the spiral downward, away from the transparent and accountable method of giving power to the public that it is supposed to be—or we could start to take responsibility for those challenges and recognise that we do not yet have answers to those fundamental questions.

I hope that every political party will recognise, not just during the implementation of the legislation that we are introducing, but in the period of time that we have to consider what should be in our 2021 manifestos, that a major overhaul is required in our democratic processes if they are going to be robust, resilient and fair in the future. I will seek leave to withdraw amendment 23, but I hope that all political parties will actively engage in those questions that have not yet been defined, let alone answered.

Amendment 23, by agreement, withdrawn.

Schedule 3—Campaign rules

The Presiding Officer

Group 7 is on referendum expenses. Amendment 5, in the name of the cabinet secretary, is the only amendment in the group.

Michael Russell

During stage 2 on 27 November, when we discussed excluding the additional costs associated with an individual’s disability from campaigners’ expenditure limits—amendments which were agreed to—Patrick Harvie asked if I had considered dealing with the issue of translations into other languages in the same way as translations for the purpose of disability. In response, I undertook to look at the issue. I have now considered Patrick Harvie’s suggestion and my officials have discussed it with the Electoral Commission, which is responsible for monitoring campaign expenditure. I am pleased to acknowledge that Patrick Harvie has raised a valid issue, which is now being attended to.

I have lodged amendment 5, which will exclude from campaigners’ expenditure limits any reasonable expenditure associated with the translation of referendum materials into languages other than English. I emphasise that we are talking only about the costs reasonably attributable to the actual translation, not the entire cost of creating, printing and distributing such material in paper or electronic form, as those costs would apply to any materials.

My aim in lodging the amendment is to make referendum material more accessible to those whose main language is not English. An individual not using English, for whatever reason, should not be a limiting factor if they want to take part in a referendum debate. The amendment is intended to address any concern that campaigners might have that the cost of providing translated material may result in exceeding their expenditure limits. I hope that members will agree that we should make every effort to involve all members of our communities in any referendum debate and that they will therefore support amendment 5.

I move amendment 5.

Patrick Harvie

I appreciate the fact that the Government has taken forward that suggestion. All of us recognise that having accessible information from campaigners in the range of different languages that are spoken in our communities is an important part of enabling everyone to participate in the democratic process. Given that we are, I hope, about to pass other legislation expanding the franchise and ensuring that the right to vote is based on residency, not citizenship, a great many more people will be able to participate in the democratic process. Many of them will not have English as their first language. It will be important that all political campaigns by parties and in referendums ensure that information is available that allows and empowers everyone to participate.

Amendment 5 agreed to.

The Presiding Officer

Group 8 is on restrictions on publications. Amendment 13, in the name of Adam Tomkins, is grouped with amendments 14 and 15.

Adam Tomkins

Group 8 is concerned with what are informally known as the rules on purdah. As the law stands, for the last 28 days—four weeks—of any referendum campaign, the Government is prohibited from publishing general information about the referendum, information that deals with any of the issues raised by the referendum question, or information that puts any arguments for or against any outcome in the referendum or that is designed to encourage voting in the referendum.

The idea of having such purdah rules is well established now in our electoral practices, but we took evidence in the Finance and Constitution Committee that the relevant period for which purdah applies—the last four weeks of the campaign—is too short and should be lengthened. We also took evidence that, in lengthening the purdah period from the last four weeks to the whole of the regulated referendum period, which is 10 weeks, we should narrow the scope of the purdah rules.

Therefore, the force of the amendments in the group is both to lengthen and to thin the rules of purdah so that the Government would be prevented in the last 28 days from providing general information about the referendum and information that is designed to encourage voting in the referendum, and it would be prevented for the whole 10 weeks from providing other information that deals with issues that are raised by the referendum question or from putting any arguments for or against any referendum outcome.

That modest redesign of the rules of purdah was supported by a range of witnesses who gave evidence on the bill to the Finance and Constitution Committee at stage 1, including Alan Renwick of the constitution unit at University College London, who said that given that, as we all know, campaigns begin well before the purdah period,

“the rules do not prevent potentially influential government interventions in the campaign.”

The Electoral Commission supported Dr Renwick’s view, pointing out that, whereas referendum campaigners must work within the statutory spending limits, Government and public authorities may spend

“potentially significant amounts of public money promoting their preferred outcome as close as four weeks before polling day.”

The Electoral Commission has recommended that purdah should apply during the whole of the referendum period—that is to say, for 10 weeks rather than merely four weeks.

In short, amendments 13, 14 and 15 extend the length of the purdah period from four weeks to 10 weeks but narrow its scope, excluding from that extended 10-week period information that simply provides general information about the referendum or is designed to encourage voting in the referendum.

I move amendment 13.

Michael Russell

It is a feature of debates about electoral regulation, particularly about referenda, that Oppositions will seek to restrict purdah and Governments will seek to maintain the present situation. I call in evidence on that David Lidington during the debate on the European Union Referendum Bill, who was defending the Government against an attempt by all the Opposition parties to restrict purdah. He described the provisions in the Political Parties, Elections and Referendums Act 2000, which is still current and which we observe, as

“a very wide-ranging statutory prohibition on Government activity.”—[Official Report, House of Commons, 16 June 2015; vol 597, c 232.]

That is what it is and I would resist further statutory prohibition on Government activity. The amendments would place tight restrictions on ministers for a period approaching three months in the run-up to a referendum. Pre-poll restrictions are accepted—they are effective and they are operating. As I said at stage 2, ministers, civil servants and public bodies expect those restrictions and understand them. However, extending them further, even if they are slightly slimmed down from Mr Tomkins’s original proposal at stage 2, would significantly inhibit the Government from conducting normal day-to-day business on behalf of citizens.

There was differing evidence on the matter at stage 1. The Finance and Constitution Committee acknowledged that uncertainty by deciding not to recommend an extended pre-poll period and it voted against the extension at stage 2. That indicates that, whatever the intention of the extension, there is not widespread support for it.

The 2016 EU referendum and the 2014 independence referendum had arguments cutting across a wide range of policy fields. Restricting all those areas for more than the accepted and legislated-for period would cause significant issues for the ordinary people of Scotland. Extending the restrictions in the way suggested by the amendments would still catch a wide range of materials. The word “publish” covers the spoken and written word, and all forms of communication including social media. That would constrain the publication of consultations and ministerial participation in public events that might in any way be seen as associated with the referendum topic.

I accept that it is hard to find the right balance. Everyone accepts that Governments should not use public funds or actively campaign at referendums. Politicians can campaign, but not Governments. Equally, as the “Fifth Report of the Committee on Standards in Public Life”, which led to the UK’s 2000 act on referendums, acknowledged, it is

“extraordinarily difficult, if not impossible, for the government of the day to offer purely objective and factual information in the course of a referendum campaign”.

The report recommended that

“the government of the day in future referendums should, as a government, remain neutral and should not distribute at public expense literature, even purportedly ‘factual’ literature, setting out or otherwise promoting its case.”

We could debate that matter, but it is not in the regulations. I understand the concerns. I acknowledge that the issue will always be a current subject, on which there will always be debate, but those amendments do not take us any further forward. They would be difficult to operate, and it is hard to see what might replace them.

At stage 1, Professor Justin Fisher said that this was

“an extraordinarily difficult area on which to legislate.”

I do not think that Mr Tomkins’s amendments solve it. I ask him not to press amendments 13 to 15. However, we will continue to acknowledge that there should be vigilance in the use of purdah—and Parliament will be as vigilant as everybody else.

Patrick Harvie

If Scotland is involved in a further constitutional referendum—as I very much hope we will be and as Adam Tomkins very much hopes we will not—it will be important that the two Governments, UK and Scottish, are on a level playing field in terms of any restrictions on their abilities. When he winds up on this group of amendments, can Adam Tomkins tell us whether he proposes a legal mechanism that will place the same restriction on the UK Government’s activity as he proposes for the Scottish Government, or does his amendment risk creating an inequality of arms?

The Presiding Officer

I ask Adam Tomkins to wind up and press his amendment.

Adam Tomkins

I am not in the business of proposing amendments that are outwith the competence of this Parliament, which imposing legislative restrictions on Her Majesty’s people’s Government would be.

The Government’s response to the amendments is disappointing. This is the third set of amendments on which the Government is seeking to resist changes. Mr Russell painted a picture of this being the Government versus the Opposition, with the Opposition seeking to promote the amendments and the Government seeking to stop them. It has nothing to do with Opposition and Government. It has to do with respecting the views of those who understand national and international best practice on the running, holding and conduct of referendums in this country.

On the Electoral Commission’s statutory role of testing questions, the Government has resisted. On the Gould principle, which I thought all parties agreed to, the Government has resisted. Now it has done so on purdah. The Government is not resisting amendments that I dreamed up but amendments that seek to put into effect the evidence that the Finance and Constitution Committee heard from the best available experts and from the Electoral Commission, whose job it is to ensure that the interests of voters are put first and foremost in the design and delivery of all referendums and elections in this country.

It is regrettable that, for the third successive occasion this afternoon, the Government is seeking to resist not Opposition amendments but amendments that are designed to make the bill reflect international best practice. This is sub-par legislation, and it is disappointing that the cabinet secretary wants that for his legacy.

The Presiding Officer

The question is, that amendment 13 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Griffin, Mark (Central Scotland) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Sarwar, Anas (Glasgow) (Lab)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 56, Against 68, Abstentions 0.

Amendment 13 disagreed to.

Amendments 14 and 15 not moved.

The Presiding Officer

Group 9 is on details to appear on published referendum material. Amendment 16, in the name of the cabinet secretary, is grouped with amendments 17 and 17A.

Michael Russell

During the stage 2 debate on 27 November, when we were discussing the requirement to include imprints on referendum material and what exemptions for personal opinions are appropriate, Patrick Harvie asked

“how we can distinguish those who are active campaigners but also publish on social media in their capacity as individuals. Where is the line between the individual and their identity as a campaigner?”—[Official Report, Finance and Constitution Committee, 27 November 2019; c 63.]

That was an important point, which mirrors concerns that many of us have. I offered to discuss the issue further with Mr Harvie, and following those helpful discussions I lodged amendments 16 and 17. They might not go as far as Patrick Harvie hoped that they would go—indeed, amendment 17A, which he has lodged, shows that that is the case—but I think that they provide a workable way forward.

The intention behind amendments 16 and 17 is to ensure that the personal opinion exemption from the requirement to include a name and address imprint on campaign materials does not extend to permitted participant campaigners, responsible persons for campaign bodies or those who would be liable for corporate offences under the bill, such as directors and similar officers of companies of registered permitted participant campaigners.

The amendments will remove the opportunity for such individuals to post referendum material without an imprint, under the guise of that being their personal opinion, unless the posting cannot reasonably be regarded as being done with a view to promoting or procuring a particular referendum outcome.

I have limited the restriction to officers who would be liable for corporate offences, because people who work for a campaign organisation might not necessarily identify with the views of that organisation; they might simply be doing their jobs. That is more likely to be the case with less senior members of staff than with senior officers, and I do not think that it would be appropriate to restrict them in the same way. It is likely that senior officers will hold views that are in line with the organisation’s campaigning stance.

As I said during the stage 2 debate, control of online campaigning is a difficult area that we are trying to get right. We have to balance the need to regulate referendum activity appropriately without inhibiting the ability of members of the general public to discuss the issues that are involved, which would stifle debate and not benefit anybody.

Patrick Harvie and I have discussed his amendment 17A. The Electoral Commission’s view—and we have, of course, leaned heavily on the Electoral Commission’s view in these matters—is that Mr Harvie’s proposal is, unfortunately, “unworkable”. Campaigners are not required to report details of donations below £7,500 to the commission, so it is unclear how the commission would be able to enforce the imprint rules for people who donated between £500 and £7,500, given that it would not be aware that those individuals were required to include an imprint on their communications.

The practicalities aside, I am concerned that such restrictions around the use of social media might act as a disincentive for people to donate to campaigners, or, if they had donated, to take an active part in the referendum debate.

This is an evolving issue. It is very likely that a future Government will have to make further changes in the area, potentially using the power to amend the framework to respond to an Electoral Commission recommendation, for example.

Having said that, I commend to members my amendments 16 and 17, as a reasonable and proportionate response to the online campaign environment as it exists at this time. I ask Mr Harvie not to move amendment 17A, on the ground that, although I am certain that it is well intentioned and I agree with much of what Mr Harvie intends, his proposed approach would not work in practice.

I move amendment 16.

Patrick Harvie

The cabinet secretary is right to say that this is an evolving area. I am certain that the provisions that are agreed to in the bill, whatever they are, will not be the last word on the matter.

It is also a complicated area. The concepts that we use even to talk about how we regulate online campaigning are themselves inadequate. The idea of a digital imprint almost implies that we think that every piece of online campaigning is just the digital equivalent of a piece of paper that is posted through a letterbox or stuck up on a lamppost.

Online campaigning involves a far more sophisticated set of tools and requires a far more sophisticated model of regulation and enforcement, which the bill will not achieve. Indeed, even if amendment 17A is agreed to, the bill will not get close to achieving that; there is a lot more work to do.

During the stage 2 discussions, I genuinely found it difficult to understand a reason in principle why an online publication should be subject to a lower level of regulation than applies to a physical publication. A single tweet or a Facebook post can have a dramatically bigger reach than an individual flyposting in their community or printing leaflets and putting them through letter boxes in their neighbourhood. Such campaigning requires people to say who they are, and I do not see a requirement for people to say who they are in online publications—and publications are what we are talking about—as an inhibitor of freedom of speech. People make the argument about freedom of speech, but simply being willing to say who you are does not inhibit freedom of speech. I see my proposal as inhibiting covert campaigning, which can be, and has been, an aspect of the manipulation of our democratic system that we should all be concerned about. My amendment 17A simply adds in a requirement that applies to those who have donated to campaigns, as it is clear that those whose money is being used to influence our democracy ought to be held to a higher standard of accountability than individuals who simply chat about the issues with their friends, whether online or offline.

I do not see a reason in principle why donors should be excluded. The provision may well be difficult to enforce, and it may well be that the Electoral Commission will not have the information that it needs to enforce it, but we do not make lawful things that we think are wrong simply because enforcement would be difficult. We should be setting an expectation of transparency and honesty in our electoral process, and an expectation that donors—those who use their money, rather than just their votes, energy, creativity or activism, to influence the political system—ought to be held to a reasonable standard and must at least say who they are when they put publications online.

I will move amendment 17A. I have no idea whether it will get support from anybody else in the chamber, but it is an important principle that needs to be asserted.

Michael Russell

I respect Patrick Harvie’s view on the matter and I entirely agree with him that the financial factors should not be excluded in any way. I simply say to him that the information that will be required to implement the proposal in his amendment does not and will not exist in the hands of the Electoral Commission. Therefore, if amendment 17A is agreed to, although the provision will sit on the statute book, it cannot be operated. I do not think that we make good law if we put things on to the statute book that we cannot actually operate because we do not have the information to do so.

If the Electoral Commission comes forward with recommendations on these matters, as it intends to do, we will look at the recommendations and try to implement them. Regrettably, I will have to vote against amendment 17A, because what it proposes cannot be done.

Amendment 16 agreed to.

Amendment 17 moved—[Michael Russell].

Amendment 17A moved—[Patrick Harvie].

The Presiding Officer

The question is, that amendment 17A be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Wightman, Andy (Lothian) (Green)
Wishart, Beatrice (Shetland Islands) (LD)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Yousaf, Humza (Glasgow Pollok) (SNP)

Abstentions

Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

The Presiding Officer

The result of the division is: For 32, Against 61, Abstentions 30.

Amendment 17A disagreed to.

Amendment 17 agreed to.

Schedule 4—Campaign rules: investigatory powers of the Electoral Commission

The Presiding Officer

Group 10 is on the investigatory powers of the Electoral Commission. Amendment 18, in the name of the cabinet secretary, is grouped with amendments 19 and 20.

Michael Russell

I hope we are in the last stages—the canter towards the end of the amendments.

At stage 2, I lodged a number of amendments aimed at strengthening the Electoral Commission’s monitoring powers to gather information about campaign activity. The commission sought the strengthening of its power to obtain information so that it could deal with compliance issues in real time ahead of a referendum. Those amendments were agreed to by the Finance and Constitution Committee. The further amendments in this group refine those earlier amendments in response to comments from the commission.

Amendment 18 adds an additional category to the categories of individuals or bodies to which the Electoral Commission can give a disclosure notice. The new category covers individuals or organisations that have not registered as permitted participant campaigners but which the commission has reasonable grounds to believe have published referendum material without an imprint of name and address details. Taken together with the proposal in amendment 20, a disclosure notice can require such individuals or organisations to provide the commission with information or an explanation.

Amendment 19 provides a minor clarification that a disclosure notice can cover relevant donations and regulated loan or credit transactions received or entered into before an individual or body became a permitted participant. That will ensure that an individual or body that is not yet a permitted participant cannot avoid scrutiny by undertaking regulated referendum campaign activity before registering. The provision will enable the Electoral Commission to confirm both that donations and transactions are correctly reported and whether an individual or body has carried out inappropriate campaign activity before registering as a permitted participant.

The amendments add to those agreed to at stage 2 and make certain aspects of the policy clearer. Taken together, they represent a further strengthening of the Electoral Commission’s monitoring powers over the campaign rules to gather information that could lead to a formal investigation.

I move amendment 18.

Amendment 18 agreed to.

Amendments 19 and 20 moved—[Michael Russell]—and agreed to.

Long Title

The Presiding Officer

Group 11—the final group—is on the long title. Amendment 24, in the name of the cabinet secretary, is grouped with amendment 25.

Michael Russell

These technical amendments are a result of the changes to section 1 at stage 2. The removal of the option of providing for a future referendum by regulations meant that the long title of the bill no longer reflected its contents. The words about “other referendums” are no longer needed, so amendments 24 and 25 adjust the long title accordingly and reflect changes to the bill that have already been agreed to.

Amendments 24 and 25 moved—[Michael Russell]—and agreed to.

The Presiding Officer

That ends consideration of amendments.

At this stage, as members might be aware, I am required under standing orders to decide whether any provision of the bill relates to a protected subject matter—that is, a matter affecting the Scottish parliamentary elections or franchise. In my view, no provision of the Referendums (Scotland) Bill relates to a protected subject matter. That means it does not require a supermajority in order to be passed at stage 3. We will move shortly to the debate and decision time will be brought forward. Decision time will be in roughly one hour’s time—merry Christmas.

The Deputy Presiding Officer (Linda Fabiani)

Parliament is suspended for five minutes. Members should be back in their seats for 3:30.

The Deputy Presiding Officer (Linda Fabiani)

The next item of business is a debate on motion S5M-20237, in the name of Michael Russell, on the Referendums (Scotland) Bill at stage 3.

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

I thank all those who have been involved in shaping and developing the bill over the past few months. I am very grateful to the bill team, which has done a tremendous job, and to the two committees that have considered the bill: the Delegated Powers and Law Reform Committee and the Finance and Constitution Committee. We have had robust debates in both committees, but they have improved the bill substantially. Members who have worked with me on previous bills know that, when I as a minister set off with a bill, I think that it can be improved, developed, changed and shaped for its purpose—[Interruption.]

The Deputy Presiding Officer

Excuse me, cabinet secretary. I say to all members that Parliament has resumed, so no private conversations should be going on and no backs should be turned to the chair. Please continue, cabinet secretary.

Michael Russell

It is perfectly possible to shape and develop a bill in a way that makes it better. That has happened in the case of this bill, and I am grateful to each member who has done that.

As we come to the conclusion of this process, I hope that today’s debate will perhaps restore some harmony, which has been somewhat damaged by the proceedings that took place earlier. We have worked very hard to move towards the resolution of the one significant difficulty that existed, and I think that we are now there.

Ensuring that elections and referendums are run to the highest standards is central to any democracy. The rules by which electoral events are run should be clear and well understood and should promote open and inclusive debate. When we look at the damage that has been done to democracy in recent months and years by the European referendum, we sometimes wonder whether we can recover from that. Referendums do not need to be divisive; indeed, many people’s experiences of the 2014 referendum were positive. I hope that we can move forward in a positive spirit to any future referendums in Scotland.

If we do so, it is important that the rules for any referendums that are held on devolved matters are specifically suited to Scotland and are debated and agreed by this Parliament. The bill therefore addresses a specific gap in the devolved legislative landscape. The purpose of the bill is to put in place a standing framework of conduct and campaign rules that could be applied to any national referendum on a devolved subject matter. My intention at the outset was to ensure that those rules meet the highest standards of electoral administration and regulation and that they reflect international best practice. That will ensure that the debate on a future referendum concentrates on the merit of the question, not on the nature of the poll. I again give my thanks to those who have helped that to happen.

I also express my thanks to the electoral community in Scotland, which has provided expert advice on the policy and technical issues that are raised by the bill. I first showed a slightly unnatural interest in electoral matters when I was a member of the Arbuthnott commission on voting systems and boundaries, more than 15 years ago. I remain very interested in electoral law and regulation. We are well served, by and large, by the electoral community in Scotland, which engaged fully in the bill, and will continue to engage in the work that will be required to make it real.

I am open to continuing to consider some issues. As elements of the bill move forward, I am sure that the electoral community and others will want to ensure that they build on the success of the bill in order to make it a reality when it is required. Changes to the framework can be triggered by a process that is set out in the bill. We have limited that process, but it is possible to have dynamic legislation on elections, and I believe that we have now achieved that.

We have further changes to make to the Scottish Elections (Franchise and Representation) Bill, which is going through Parliament. At the conclusion of that process, we will have a system that is very much fit for purpose and which is inclusive and allows all voters to participate. The technical adjustments that we have made to the Referendums (Scotland) Bill add greatly to achieving that system.

There are issues that we have not been able to resolve in the bill, and issues that have been only partially addressed.

Neil Findlay (Lothian) (Lab)

I believe that the cabinet secretary has said that there are no plans to have any referendum other than one on Scotland’s constitutional future. I accept the right to pursue that, but does he not think that, given that we do not know what will happen with Brexit, it would be irresponsible to press ahead with such a referendum?

Michael Russell

I will address that question in two ways. First, the bill does not create a Scottish independence referendum—no ifs, no buts. It puts in place a framework, which could be built on by a section 30 order or by legislation at Westminster. The bill creates the circumstances in which we could have referendums. It is certainly possible that people, including any successor Government to this one, will come to the chamber with other ideas. This framework will allow that to happen.

Secondly, to put it bluntly, no, I do not think that it would be irresponsible to press ahead with a referendum on Scotland’s constitutional future. The nature of the Brexit that we face is clear. The European Union (Withdrawal Agreement) Bill, which has been introduced in the UK Parliament, indicates what type of Brexit it will be. There is no such thing as a good Brexit, just degrees of bad Brexits. Given what we now know will take place, it will be a very bad Brexit indeed.

I think that we are in a position to judge accurately what will happen in Scotland on matters such as migration. Therefore, the sooner that we are able to take a decision, move on and re-enter the European Union—because, regrettably, it looks as though we will leave—the better it will be for Scotland.

Neil Findlay

Will the cabinet secretary make it clear that the only reason he foresees using the legislation is for an independence referendum?

Michael Russell

I have never said that. In fact, I gave evidence to the Delegated Powers and Law Reform Committee, which Mr Simpson convenes, on other areas in which I thought the bill could be used. I am saying that, clearly, there is an electoral mandate for an independence referendum—Neil Findlay has accepted that. The bill does not deliver on that electoral mandate. The legislation was introduced before that renewed mandate was given. The bill puts in place a framework. It would be perfectly possible for someone to come to this chamber next week and propose a referendum on another subject. This bill could be used for that end. I see that Mr Rumbles is thinking about what topic he would have a referendum on. I look forward to hearing his ideas.

I do not accept Mr Findlay’s point, so I will move on. The reality is that the bill provides the best practice for a referendum, but—Mr Harvie made this point this afternoon—it does not necessarily resolve all the outstanding issues that exist, including to do with digital imprints and how democracy is changing and being subject to malign influences. We need to continue to address those matters—and we do so with the Electoral Commission. We have been guided by the Electoral Commission and we have sought to work with it at every stage. We now have a bill that conforms with its requirements, I am sure. That is a very useful thing to have.

I look forward to hearing what others have to say. I hope that this will be a constructive debate. I hope that it will persuade people who are not yet sure how they will vote later this afternoon to back this framework bill. I emphasise that it is a framework bill. The bill does not produce an independence referendum—there is no doubt about that at all. We need to have that framework in Scotland and we almost have it now.

I move,

That the Parliament agrees that the Referendums (Scotland) Bill be passed.

Adam Tomkins (Glasgow) (Con)

We all know the reality, Presiding Officer. This was not intended, and never was intended, by the Scottish National Party to be a framework bill for all referendums on any subject. This is a paving bill for indyref2. The cabinet secretary has given the game away by his demeanour and, indeed, his overblown rhetoric when it comes to his insistence that it is his right to rig the rules of a second independence referendum by bypassing the Electoral Commission’s views.

There is only one relevant question to which his validity period applies: the question that was put to the people of Scotland in 2014 about whether Scotland should become an independent country. The answer to that was, of course, no.

Sometimes the SNP wants to pretend that this is a framework bill for referendums in general, but at other times it knows that it is not that. We all know that it is not a framework bill, but a paving bill for a second independence referendum.

It is sensible to have framework legislation for referendums, if the Government has ideas on what policies it is likely to use referendums to decide things. I have asked Mr Russell many times during the process of the bill—indeed, I asked about it before the bill was introduced, when the First Minister made an announcement about her proposal for a bill in a statement on independence—what subjects other than independence this Government proposes, at any point, to put to the people of Scotland in a future referendum. Answer came there none.

The only question that Mr Russell is interested in putting to the people of Scotland in a referendum is the independence question. This is the framework bill for a second independence referendum, which is in breach of promise. In the independence referendum in 2014, the First Minister repeatedly said that it was a once-in-a-lifetime opportunity.

Stuart McMillan (Greenock and Inverclyde) (SNP)

Does Adam Tomkins not agree that people can change their mind, as Jackson Carlaw did on his position regarding Brexit?

Adam Tomkins

I take the First Minister at her word. I would have thought that, as a very loyal servant of the First Minister, the member would do the same. The First Minister said many times in the 2013-14 referendum campaign that it was a once-in-a-lifetime opportunity. That was not at my insistence—it was her concession. In order to get people to vote yes in that referendum, she pretended that she would respect the result of that referendum and that it would indeed be a once-in-a-lifetime opportunity. The bill has been promoted by the Scottish National Party in breach of faith, in breach of trust and in breach of promise. That is why the Scottish Conservatives will vote against it at decision time tonight.

At the same time, the bill is a missed opportunity. The issues that Patrick Harvie raised earlier today and that he and I sought to raise in committee at stage 2, are really important. If we are to have a future in Scotland in which referendums are used more, rather than less, we have to do the work of understanding the relationship between popular democracy in the form of a referendum and parliamentary democracy in the form of the Scottish Parliament. We do not understand the relationship between popular democracy and representative democracy in Scotland and the bill should have addressed that question. Its failure to address that question is a lost opportunity.

When should referendums be held? We do not know—the bill does not tell us. On what subjects should referendums be held and why should referendums be held on those subjects and not on others? How often should referendums be held on the same subject? What do referendums even do? What happens in a referendum? Do they decide things or are they mere expressions of opinion? If they decide things, on whom are those decisions binding? Are they binding on us as individual members of the Scottish Parliament, on the Parliament, on ministers or on the Government? In what sense are they binding? What is the nature of the bind? Are they legally, politically or morally binding?

Patrick Harvie

Will the member give way?

Adam Tomkins

I will happily give way to Mr Harvie in one minute.

If we are really to have a legislative framework for referendums, we surely need to have some grasp of what the answers to those questions are before we press the green button at decision time.

Patrick Harvie

Those are important questions, but would it not be regrettable if we were to pass framework legislation that took a restrictive view? For example, the bill allows a referendum that is advisory or one that is part of legislation that triggers a power or action from Government to come into force in the event that the outcome goes a certain way. The bill allows both decisive and advisory referendums, so it is flexible, rather than something that cuts down the options that a future Parliament might take.

Adam Tomkins

That is right. There is a degree of flexibility about that. However, it does not address the critical question, which, as Michael Russell said in his opening remarks, is the one that has bedevilled British politics for the best part of three years: what is the relationship between something that is decided in a referendum and a Parliament that is tasked with the responsibility of delivering on that result?

The bill is less bad than it was when it was introduced. There is no longer a power in the bill for Mr Russell merely to click his fingers and for there to be, as if by magic, a referendum by ministerial order—as there was when he introduced the bill. The Electoral Commission’s role in the testing of referendum questions, while significantly reduced, in a manner that cannot be forgiven—and certainly will not be forgotten—has not been quite as obliterated as Mr Russell might have wanted.

However, this afternoon we have missed opportunities to improve the bill by revising the purdah rules and by implementing the Gould principle in statute in Scotland for the first time.

It does not matter what the bill says, because the Scottish National Party knows, as we all know, that the bill would be used by the SNP only for a second independence referendum, and—thanks to the SNP—there is not going to be a second independence referendum. We had a general election last week, and the result was that we have the first Conservative majority Government in the United Kingdom since 1992. So, thank you to the SNP for ensuring that we had that election, and thank you to the SNP for ensuring that we have a Conservative majority Government. We will note that the Queen’s speech—

The Deputy Presiding Officer

Come to a close, please.

Adam Tomkins

—which was delivered by Her Majesty from the throne in the House of Lords this afternoon, made it perfectly clear that this people’s Government will not allow a second independence referendum. It does not really matter what this legislation says, because it is redundant already.

Alex Rowley (Mid Scotland and Fife) (Lab)

In opening the debate for Scottish Labour at stage 1, I said that

“If we, as a country, were to want to move to a more direct democracy in which referendums are used more and more in decision making, the objectives that the bill sets out would be sound.”—[Official Report, 7 November 2019, c 63.]

As a result of its scrutiny of the bill, the Finance and Constitution Committee made a number of key recommendations on how to improve some of the bill’s fundamental flaws. Many of those recommendations have been accepted by the Government. Crucially, however, the recommendation on question testing has not. Today, we will hear from many members that the bill is an administrative procedure to facilitate future referendums, so that the current ad hoc approach to them need not be retained.

In my lifetime, there have been six referendums. Three were UK-wide, and three have been specific to Scotland and the constitution. The reason why there have been so few is that we live in a parliamentary democracy and abide by the principle of parliamentary sovereignty. I am not aware of any great shift in public opinion, or of demand that we move away from that principle.

The bill that we are debating paves the way for an independence referendum to take place next year. Indeed, when Michael Russell gave evidence to the Finance and Constitution Committee, he stated:

“We have never hidden the fact that I see this bill being used by the Parliament and the Government to create the referendum for independence”.—[Official Report, Finance and Constitution Committee, 25 September 2019; c 4.]

He went on to say that the SNP has no plans for any other referendums. I say again, today: on that basis, Labour cannot support the bill. We believe that it is not in Scotland’s interests to create, in the midst of the Tory Brexit chaos, even more uncertainty and chaos. Indeed, I suggest that it would, during this period, be impossible to put a clear proposition to the Scottish people.

What I cannot understand is that the SNP says that the 2014 referendum was a gold-standard referendum, but is now, in 2019, trying to pursue a referendum in which it would be impossible to know exactly what we would be voting for. Perhaps that is why the SNP is so determined to rig the question. It says that the question has been tested time and again, but I say that the proposition in 2014 and the proposition today are very different.

What the SNP is proposing for next year is independence in Europe. We know that the deficit reduction that would be required for membership of the European Union would lead to years of massive austerity in Scotland—that is before we even start counting the cost of the divorce bill from the rest of the UK, or the cost of a hard border with England.

The other point is that we do not know whether we would get entry to the European Union. Mr Russell tells us that Herman Van Rompuy, the former President of the European Commission, says that the path is open for Scotland to join the European Union. I ask what terms and conditions we would have to sign up to—never mind the fact that all 27 EU countries would have to agree.

I also draw Mr Russell’s attention to the comments of the European Policy Centre think tank, of which Mr Van Rompuy is president, which has

“said Scotland could not expect ‘special treatment’ and that the Scottish Government would have to accept all the obligations of membership, including agreeing in principle to join the euro.”

So, before the SNP starts rushing ahead for a new independence referendum to seek an independence in Europe mandate, I suggest that it must be able to explain exactly what that would mean for hard-working people in Scotland.

All our efforts over the next year must, surely, be focused on minimising the damage that Brexit will do to our country. That is what the majority of people expect from this Parliament and from the Government. That is what they want, and that is why Labour will not support the bill.

Patrick Harvie (Glasgow) (Green)

I am pleased to have the opportunity to speak in favour of the bill, which I do confident in the knowledge that pretty much no serious evidence was submitted during the process that disagreed with the principle of having framework legislation on referendums. Rather, there was broad agreement that it is a good idea.

There was, however, also broad agreement that the bill as introduced was not adequate; it has been substantially changed since then. Adam Tomkins said that the bill is “less bad” than it was when it was introduced, which might be the closest that we get to high praise from him. Nonetheless, it is true that it is a less bad bill. There have been significant improvements, which are adequate for me to be able to support the bill.

Referendums can be done well or they can be done badly. That is true in relation to the practice, the process, the conduct, and the legislation under which they operate. It is also true in relation to the political judgments and the nature of political campaigning around referendums. The bill will improve the former: the practice, the process, the conduct and the legislation under which referendums will operate in the future.

However, improving the politics of how and why we use referendums—of their purpose and meaning in our democracy—is something that we all, as political actors, need to take responsibility for. I do not mean just we, in the chamber; I mean we, in our society and our democracy.

There can be very little doubt that the argument that Alex Rowley referred to, about the sovereignty of Parliament, holds great importance for many people at UK political level. However, it does not always sit easily with the principle of the sovereignty of the people that we speak of in Scottish constitutional history. That conflict is one of the things that has played out in chaotic and damaging ways at UK level in recent years. In fact, the people in the UK Government who are today proudly and patriotically asserting the sovereignty of Parliament are the very same people who have been demanding that a wafer-thin majority in an advisory referendum that was conducted with—at best—dubious tactics represents the unshakeable and unchallengeable will of the people, and that it has to be implemented, even to the point of illegally proroguing the UK Parliament. Those who assert one principle but live by another do not necessarily speak from the high ground in relation to those issues.

I have argued since—I think—before the bill was introduced that we should look to Ireland if we want to learn how to improve the politics of how we do referendums and why we use them. In what could have been deeply divisive and polarising issues, Ireland did not frame referendums simply by giving the job either to politicians or to an electoral commission. Rather, it actively brought in deliberative processes, with citizen-led discussion about what questions should be put to referendum and how to frame them. In that way, what might otherwise have been divisive and polarising referendums were much more unifying experiences.

I do not pretend that we can solve every aspect of the challenges that we will face as we approach the next independence referendum; it is coming and it is necessary. We can improve the legislation today, but we cannot with a single bill improve the politics of how we do referendums. We will all need to take responsibility for that, and learn lessons from what, in the past, we have done well and what we have done badly.

Mike Rumbles (North East Scotland) (LD)

MSPs from all across the chamber should be here to speak in support of a non-controversial technical bill to manage the detail of referendums that might take place in the future. Unfortunately, we are not in that position: the bill that is before us this afternoon is not just a technical bill, and nor has the Scottish Government designed it as a non-partisan bill.

No one here is under any illusion: the bill will pass this afternoon with the votes of the two nationalist parties in the chamber, and it will be portrayed, by the Scottish Government, to the rest of the UK and to the UK Government, as the will of the Scottish people. Of course, it is no such thing, because the two nationalist parties fixed the terms of the bill for their partisan advantage.

The independent Electoral Commission is being bypassed in respect of the question that the nationalists want to re-put to the Scottish people.

The Electoral Commission said:

“We continue to be of the view that should a future referendum on Scottish Independence be brought forward, the Commission should be required to reassess the question regardless of whether it will take place within the ‘validity period’. This will ensure confidence in the legitimacy of the referendum result.”

Mike Russell and Patrick Harvie tried to hoodwink us over the view of the Electoral Commission. However, Mike Russell also said that the “validity period” applies only to the current session of Parliament. He is wrong. Let me read from the relevant section, for him.

“In subsection (7), the “validity period” means ... the period composed of the session of the Scottish Parliament in which the proposed date of the referendum falls and the preceding session.”

Is Mike Russell in charge of the content of his bill, or is he trying to hoodwink us again?

Mike Russell, for the Scottish Government, has been too clever by half—a charge that is often put to him. He has almost, but not quite—thanks to the nationalist Greens—single-handedly put what should have been a non-controversial bill before us and turned it into a nationalist charade. Today, the nationalists’ mask has slipped.

Patrick Harvie

Will the member take an intervention?

Mike Rumbles

I am afraid that I have only four minutes.

Patrick Harvie complained earlier about my use of the phrase “mask of nationalism”, but it is an apt phrase. Mr Harvie pretends to be holier than thou, but the Greens have put their nationalism before fairness. How often have we heard that?

Patrick Harvie

Will the member give way?

Mike Rumbles

Because I have more time, I will give way.

Patrick Harvie

I say, with the best will in the world, that I would not call Mike Rumbles a British nationalist, and he would not thank me if I did. Would he please pay the rest of us the same courtesy?

Mike Rumbles

No, because that is exactly what the Green Party is—a nationalist party. It is amazing that it pretends that it is not a nationalist party.

The Scottish Government is not a nationalist Government that seeks to legislate for the good of everyone in Scotland—the bill proves that beyond doubt. On the day when the First Minister asks the UK Government for a section 30 order, the bill will ensure that no sane UK Government of any colour would accede to the request for a referendum under the rules in the bill, when the nationalist parties have fixed the terms of the question.

That convinces me that the nationalists are playing a game with the future of our country. I do not think that they expect another referendum to take place, but here we go on a long line of grievance, because no UK Government in its right mind would transfer such power to this Government, which is trying to fix the question.

The bill tries to fix the question as the Scottish Government wants to fix it, but the two nationalist parties do not have the courage to say that. Because of that, the bill stains our democracy. Therefore, the Liberal Democrats will vote against it this afternoon.

Bruce Crawford (Stirling) (SNP)

I want to do two things in the time that we have available for today’s important debate. Before I do that, I note that I am disappointed in the boorish and rude language that we have heard from some members this afternoon. It is unbecoming.

I want to look at the principled, entirely reasonable and well-supported case for having referendums framework legislation on the statute book. I also want to spend just a short time exploring the wider matter of Scotland’s undeniable democratic right to choose her own future.

Although I do not speak today as the convener of the Finance and Constitution Committee, I put on record my grateful thanks for the fantastic support that I have received from the committee clerks throughout the passage of the bill.

I move on to why all parties in the chamber should support the bill at decision time. The policy objective of the bill is to put in place a generic framework for referendums and provide the technical arrangements for any specific future referendums. It is safe to say that the policy objective found almost total support from electoral professionals and across academia.

For instance, the Electoral Commission’s view was that the bill

“would help to provide clarity of the rules for anyone administering or campaigning at a particular referendum.”

The Scottish Assessors Association welcomed the bill on the basis that

“there will be one set of legislation to govern all referendums in Scotland.”—[Official Report, Finance and Constitution Committee, 18 September 2019; c 2.]

The view of the Electoral Management Board for Scotland was that

“Rationalising existing laws to create a single, consistent framework governing referendums offers many benefits to the voter, to campaigners, the regulator and electoral administrators”.

It saw the bill proposals as a “wholly positive policy direction.”

The Institute for Government said that the overall policy objective was a “good one” and that

“standing legislation is preferable for the purposes of consistency and to prevent manipulation of the rules”.

Dr Alan Renwick of University College London’s constitution unit “strongly welcomed” the proposals for a standing legislative framework. Among others who provided supportive comments were Dr Theresa Reidy and Professor Toby James.

Therefore, those of us in the chamber who are genuinely interested in following an evidence-led path when placing legislation on the statute book should support the bill when we come to decision time this evening.

I conclude with a short comment on the result of last week’s general election, and the vital importance of recognising and implementing the outcome of the democratic process. In doing so, I recognise the achievement of the Conservatives in winning a majority. I may despair at the outcome, but respect and face that reality I must. However, so, too, must the Tory party in Scotland respect and face the reality of the outcome of the election in Scotland. Yes, the election was a victory for one-nation conservatism, but that one nation was England. Scotland chose a different path and her democratic wishes must be respected.

If, on a vote share of 43.6 per cent and seat share of 56.1 per cent, the Conservatives claim a democratic mandate for the UK to leave the EU, how can any argument stand against the democratic legitimacy of the outcome in Scotland, where the SNP share of the vote was 45 per cent and seat share was an emphatic 81 per cent?

I say in all seriousness to the Tories that the democratic voice of Scotland will be respected and the people of Scotland will choose their own future.

Alexander Burnett (Aberdeenshire West) (Con)

We could have been spending the last moments of this year in Parliament debating something that is important to the majority of people in Scotland. We could even have been spending this precious time passing legislation under the SNP’s programme for government.

Education—that was what the First Minister announced as her number 1 priority for this Government. The national health service—that was what the First Minister proclaimed that she had a duty to protect. Climate change—that was what the SNP declared as a national emergency. However, here we are again, forced to debate a bill that no one supports, save those who look to divide the country. Not only is the bill unwanted, but it is being rushed through with undue haste. SNP members argue that the bill is their Government’s most important bill, so why are they not giving it the scrutiny that it deserves?

According to figures from the Scottish Parliament, if the bill is passed today, it will have had only 205 days to be scrutinised, which is well below the average of 271 days. To give that some context, only three bills in this parliamentary session have received less time, and they were the budget bills.

Bruce Crawford

Can Alexander Burnett give us an example of where the committee failed in the parliamentary scrutiny process or, indeed, where extra time should have been built in and for what purpose?

Alexander Burnett

I think that we would all have wanted more time for the Electoral Commission to give its agreement to the bill. That is one example, and it is very sad that that has not occurred.

I would ask why record-breaking speed was used for a bill that no one wants and what devolved matter is so pressing that it requires a referendum. However, such questions would, of course, be rhetorical, because we all know the answer. The bill is yet another fig leaf for the SNP’s eternal quest to break up the United Kingdom, and that will remain an eternal quest. Scotland said no in 2014 and nothing—I repeat, nothing—has changed since then to give cause for another such question. Only its interpretation of the numbers gives the SNP the belief that it has a mandate—an interpretation that is matched only by its education failings in maths.

I therefore have one question for the cabinet secretary, which concerns the method for declaring the winner of any referendum. My understanding is that referendums are decided on the total number of votes cast across the whole of the electoral region. Last week, the SNP won the most seats in Scotland due to the vagaries of the first-past-the-post system. However, it claims majority support, despite 55 per cent of Scotland voting against the SNP and its wish for separation. Can the cabinet secretary confirm that the result of a future referendum in Scotland will be decided on the majority of voters and not the 32 counting areas?

In other parts of the bill, we have supported proposed changes, but they have not gone far enough. The role of the Electoral Commission remains insufficiently strong and the manner in which the cabinet secretary has tried to hijack so many parts of the process has more in common with third-world dictatorships than with the transparent democracy of the United Kingdom. Of course, the SNP is pushing the bill through today only because it told its nationalist extremists that it would get the bill through Parliament by the end of the year. That is simply not good enough, and Scotland deserves better. I am proud to say that I will not be supporting the bill today and I know that my constituents will thank me for it.

We must start prioritising what is important: education, the NHS, police, nurses, climate change, welfare, local government, our communities, jobs and the economy—take your pick. We are here today talking about the constitution only because the SNP is failing on everything else. We must hope that the new year brings the change that Scotland wants.

Neil Findlay (Lothian) (Lab)

I regret deeply the election result last week. I believe that many of the working people who voted for Boris Johnson will soon become the victims of his divisive political agenda and philosophy. In Scotland, the SNP won the election convincingly—there is no doubt about that—but the SNP’s election pledges to lock Boris Johnson out of Downing Street and stop Brexit were, of course, nonsense. The SNP alone could never deliver that, no matter how much it pretends that it can or could.

As a democrat, I accept that the people are sovereign, so I accept the election result. I also accept that when a party can carry a majority in Parliament, it has the right to introduce and pass any bill that gains the necessary support. From that starting point, I would have been inclined to support the bill before us, but I cannot vote yes to the bill at decision time for two key reasons. First, driving ahead with a call for a referendum in 2020 would be a huge mistake. Brexit will have major implications for our economy and society, and we have no idea yet of its implications for jobs, trade, immigration, border arrangements, security, intergovernmental relationships, financial transactions and so much more.

On top of that, we can add the hundreds of issues that would need to be addressed in Scotland if it were to become an independent state, such as issues of currency and a central bank, pension levels, EU membership and its terms, how to adhere to a 3 per cent budget deficit and how to fund public services when Barnett goes. Those are huge and serious questions that need credible answers. We cannot have a repeat of the fantasy that was the 2014 white paper. It would be completely irresponsible for any independence prospectus to be put forward without knowing the real day-to-day implications of Brexit for our people. Such a prospectus cannot be put forward in 2020.

Secondly, I cannot support a bill that seeks to pauchle the referendum question. If a referendum is to happen, it must be completely fair and credible and, importantly, be seen by all to be so. It is just plain wrong to attempt to manipulate the role of the Electoral Commission or the question. I appeal to the cabinet secretary on that, because it is plain wrong. It leaves the Government wide open to the charge of trying to fix or manipulate the referendum from the outset. I see the cabinet secretary shaking his head. He can do that all he likes, but that is how it will be seen. It will erode confidence, trust and good will from the outset. If the cabinet secretary thinks that that is the way to bring on board people who were previously opposed to a referendum or even independence, I have to tell him that it is exactly the wrong way to go about it.

Finally, I say to my party that we have wasted eight years, from the 2011 election through the 2014 referendum to the present day, in which we have failed to come forward with a credible, workable and coherent alternative to independence. We have been reluctant and grudging when proposals for devolved power have come forward and we have seen those as a concession to nationalism. I am no nationalist and I never will be, but I see the devolution of power to the lowest possible level as the natural and desirable democratic order. Labour must now get its act together quickly. In my opinion, hard oppositionalist unionism is the road to oblivion. The people want change, and that should be a devo max proposition, based on the principle that all powers should be devolved unless there is an overwhelming reason not to devolve them.

I do not like abstaining in the Parliament, but tonight I will do so. The Government has the right to proceed with a referendum, but doing so before we have clarity over Brexit is putting party interest before the national interest. At this late stage, I appeal to the cabinet secretary not to do it.

Angela Constance (Almond Valley) (SNP)

During the stage 1 debate, I made it clear that, as a lifelong supporter of independence, I want our journey to be inclusive and built on the best international standards and that the key decisions should rest with the Scottish Parliament rather than ministers. The bill now allows for the Parliament to scrutinise the merits of any proposed referendum, the question to be asked and the timing. Parliament is now in the driving seat.

I hope and believe that there will be a new independence referendum, but the real question at this point is whether the UK Government will give the Parliament the legal authority to respect the democratic right of the people of Scotland to choose their future, or whether Boris Johnson will continue to ignore and say no to the people of Scotland.

The Prime Minister’s supporters will say that we do not have a mandate, and on one level they have a point, because we have mandates, plural. We have a cast-iron mandate from elections in 2016, 2017 and 2019. I would never want to reduce an argument to saying, “Ours is bigger than yours,” but, at the end of the day, our mandate is bigger than theirs. It is galling to hear members of a party that has not won an election in Scotland for 60 years arrogantly assert that they have a veto. They would do well to remember that Scotland is a country in a voluntary union of nations.

I accept the results of elections and the results of the 2014 Scottish independence referendum and the 2016 UK-wide EU referendum—they are painful but indisputable facts—but I wonder whether some of those who oppose the bill accept the indisputable fact that 62 per cent of resident Scots voted to remain in the EU and now face the prospect of being dragged out of the EU against their democratic will. Do the members who oppose the bill accept that democracy can never be a one-off event? Do they accept that people and citizens always have the right to change their mind, particularly when there is such a change in circumstance? If Brexit has taught us anything, surely it is what not to do if you want to persuade and lead.

It is worth reflecting that it was not the SNP Scottish Government that ripped up the UK Tory Government’s rhetoric on respect or the so-called partnership of equals. The Tories managed to do that all by themselves. I believe that history will show that ignoring the part of the UK with the highest remain vote will indeed lead to the demise of the United Kingdom, and I think that the Tories know that.

I have never in my political life subscribed to any notion of Scottish exceptionalism. What we are faced with today is a tale of two Governments. It is a tale of two countries that continue to make very difficult political choices, and because of those difficult and different political choices I believe that, now more than ever, we need to escape Brexit and ensure that Scotland’s future is in Scotland’s hands.

I am Angela Constance and, Mike Rumbles, I am proud to say that I am a nationalist. However, I also say to people in the Labour ranks that times have changed since 2014. There will need to be a new case made for independence if there is to be a new referendum and it will be up to me, the SNP, the Scottish Government and the wider yes movement to make the case that independence and everyday bread-and-butter issues are indivisible.

I end by wishing everyone a merry Christmas—and here’s to the new year.

The Deputy Presiding Officer

We move to the closing speeches.

Pauline McNeill (Glasgow) (Lab)

As a nation, we have not looked to use the referendum process as much as other European countries—Ireland was given as an example—except, of course, on big questions such as Scotland’s future and our relationship with Europe, which are vivid in our minds. The 2014 referendum followed the Edinburgh agreement in 2012 and the EU membership referendum took place in June 2016. Most of us have probably forgotten that we had another referendum, on the alternative voting system—I always forget that one.

Well before 2016, Nicola Sturgeon said that there should have been a requirement prior to the 2016 referendum to have a majority in Scotland, Wales and Northern Ireland. I was not in the Parliament when she said that, but I agreed with her. Perhaps more people have thought in hindsight that that would have been a good idea.

The bill that we are looking at is a framework bill that will provide the legislation for any referendums held in Scotland that are within the competence of the Scottish Parliament. It seems to be a change from previous practice when it comes to setting the question. In its current form, the bill is unacceptable to us and we believe that the Government has failed to take on board the strong and fair view that it should not set the question. Rather, the question should be rigorously tested by a third party—namely, the Electoral Commission. I am not clear about why we are changing the practice that has previously been used. The central issue for us is that the question should be tested.

Section 1 of the bill as introduced allowed the Scottish ministers to make regulations to provide for holding a referendum and deciding the date, the form of the ballot paper, the wording of the question and the referendum period. Section 3(1) allows ministers to specify in subordinate legislation the wording of a referendum question without the necessity to consult the Electoral Commission. The Government is not taking a neutral position. It is an odd position for a Government that wants to take forward legislation in order to ask a question, whether that is on independence or any other matter. By not having the question tested by a neutral body, it seems to be opening itself to an accusation—at least—that the process does not have integrity.

The cabinet secretary has shifted his position—I see what he has done—but he has not shifted enough. It is not a small difference, as Michael Russell said earlier; it is a big difference. There is a big difference between allowing the Electoral Commission to give expert advice and requiring the question to be tested. It should be a matter of law. It should not simply be a matter of the Parliament asking for that advice if it so wishes. I do not regard asking for advice as a major concession, and I think that the Government is risking the integrity of the process. As Neil Findlay asked earlier, what is it scared of?

I want to address the question of a future Parliament that Patrick Harvie spoke about. It is not a comfort to me either that a future Parliament may decide to make the rules, particularly if there is a majority of independence-supporting parties in the Parliament. In that scenario, to give the process some integrity, there would still be an imperative for a neutral expert body to decide the rigour of the question. Even if the question has been asked before, the Electoral Commission said that it would like to take public opinion into account over the 12-week process to see whether there should be an adjustment to the question.

As Neil Findlay said, 2020 is the year in which the Scottish Government will need to focus on the damaging implications of a poor Brexit deal. We have supported the Government in its approach until now. We will continue to do that through the process of the return of powers from Europe to Scotland.

Last week was devastating for the Labour Party, and we need time to reflect on the results and how we will represent Scotland’s best interests. However, it is clear that Scotland last week rejected the Tory Government, which remains the biggest threat to the union. Next year will be a difficult year for the country, and I plead with ministers in this Government to focus on using this Parliament’s voice as we tragically leave Europe, and to use that time to influence the process in the best interests of Scotland.

Murdo Fraser (Mid Scotland and Fife) (Con)

I am not sure that the debate that we have had over the past hours added a great deal to our understanding of the bill; I am not sure that arguments have moved on much from the stage 1 debate just a few weeks ago.

However, we are clear on exactly what the bill is about. Despite what the cabinet secretary said at the outset, this is not a bill about referendums in general. We know that, because there are no referendums in prospect in this country except the one that the SNP is so keen on—a second independence referendum. Throughout the parliamentary progress of the bill, civil servants were unable to name any other topics that might be put to a referendum. Indeed, there is no popular tradition of holding referendums in this country, except on matters of the constitution.

The cabinet secretary has been quite explicit in stating that the bill is being used—and will be used—by Parliament and in due course the Government to create a referendum for independence. Therefore the bill is not about referendums in general or whether referendums should be a more significant part of our legislative arrangements. Adam Tomkins opened up an interesting debate on whether that should be the case and what rules might govern that process. The bill is about one thing, and that is the question of a referendum on independence.

If there were any doubt about that, what we have heard in speeches around the chamber makes it clear that those on the unionist side see this very much as a bill that is only about independence. In that respect, we have been clear. Adam Tomkins reminded us that we had a referendum in 2014. We were told that it was a once-in-a-generation vote. Indeed, the current First Minister said that it was a once-in-a-lifetime vote. In our view, there is no justification for rerunning that referendum now.

SNP speakers will claim—Bruce Crawford and Angela Constance both did—that the general election last week changed the territory, but we know that there were SNP candidates in that election who were denying that it was an election about independence. We know that there were SNP candidates who made it explicitly clear that a vote for them was not a vote in support of independence.

Gillian Martin (Aberdeenshire East) (SNP)

I believe that the member is referring to the candidate for Gordon, whom I know very well. In fact, the candidate for Gordon was saying that people should vote for him for Scotland’s right to have the choice. Would the member deny Scotland’s right to choose its future?

Murdo Fraser

It was not just the candidate in Gordon. Other candidates made very similar claims. Even if we accept the argument that a vote for the SNP was a vote for another referendum—an argument that I reject—it won only 45 per cent of the popular vote, so there is no mandate and no popular support for another referendum. On that basis alone, Parliament should reject this bill.

There is another reason why the Parliament should reject the bill: the bill represents a power grab by the Scottish Government. In relation to the wording of a referendum question, the Scottish Government has been reluctant to move from its previous position, that reuse of an existing question means that the question does not have to be retested.

That is contrary to the view of the Electoral Commission. Despite the cabinet secretary’s sophistry earlier this afternoon, the Electoral Commission made its position very clear to the Parliament in its briefing for stage 3. It said:

“we continue to be of the view that should a future referendum on Scottish independence be brought forward, the Commission should be required to reassess the question regardless of whether it will take place within the ‘validity period’.”

That is crystal clear, and the cabinet secretary has not accepted the Electoral Commission’s view.

That is an important point in the context of a potential future independence referendum, because we know that, in any referendum in which a yes-or-no question is asked, people on the yes side start with an in-built advantage. That is because “yes” is a positive and affirming word and it is easier to get people to agree to a proposition than it is to get them to disagree with one. That is precisely why, in the 2016 referendum, the question was framed not to elicit a yes-or-no answer; rather, people were asked whether they wanted to leave or remain.

That is why the role of the Electoral Commission is so important. These are not matters that should be entirely determined by the Scottish Government.

As it stands, the bill represents an attempt by the SNP Government to gerrymander any future independence referendum and rig its terms, to give as favourable as possible an outcome to the SNP. That should not be acceptable to this Parliament.

Mr Rumbles said that, if the bill is passed today, the Scottish Government will trumpet it as the next step towards another independence referendum. He was right. There is no coincidence about the timing of the debate on the very day when the First Minister is demanding section 30 powers from Westminster—[Interruption.] If the Parliament passes the bill, it will be announced as the next step towards an independence referendum—

The Deputy Presiding Officer

Excuse me, Mr Fraser. Will members who are having conversations please quieten down?

Murdo Fraser

The bill is about just one issue: a future independence referendum. We do not want another referendum and the public do not want one. In last week’s general election, the parties that support another referendum could not get even half the votes that were cast. The Parliament should reject the bill at decision time.

Whether members support or reject the bill, I wish them all a very happy Christmas.

Michael Russell

I wish all members a merry Christmas and a good new year: Nollaig chridheil agus bliadhna mhath ùr. I start with that, because I suspect that the tone of the debate might deteriorate from here on in, and I want to get my good wishes in before it does so.

I have to say that Mr Rumbles’s speech was among the silliest that I have heard in the chamber—and I have heard some very silly speeches in the chamber. It was particularly silly because he said at one point that he is now not going to support the bill. Let me quote what he said in the stage 1 debate:

“We do not support the bill and will vote against it”.—[Official Report, 7 November 2019; c 71.]

His change of mind is not a change of mind.

I also point out kindly to Mr Rumbles that his two contributions to the bill have been a speech in the stage 1 debate and a speech in the stage 3 debate. He has not attended any of the committee meetings and he has not heard the committee—

Mike Rumbles

I am not a member of the committee.

Michael Russell

MSPs who are not members of the committee moved amendments at the committee; Mr Rumbles chose not to do so. One can call him a spectator of, rather than a participant in, the bill process.

However, the prize for the most extraordinary comment today has to go, yet again, to Alexander Burnett—[Laughter.] I suspect that Conservative members will not laugh for long. He said that nothing has changed since 2014. If I may, at this religious season of the year, quote a hymn, that might be true for the rich man in his castle but it is not true for the poor man at his gate.

In the 2015 general election, the SNP won. In the 2016 Scottish Parliament election, the SNP won. In the 2016 European Union referendum, 62 per cent voted to stay in the EU. In the 2017 election, the SNP won. In 2019, the Tories lost seven seats. Nothing has changed, of course; everything remains the same. It may remain the same for Alexander Burnett, but it does not remain the same for the poorest and the most vulnerable; it does not remain the same for the 200,000 European citizens; it does not remain the same for small businesses that will not have the labour that they need; and it will not remain the same for public services. Nothing has changed: that sums up the Tory position.

Angela Constance was right to say how galling it was to hear what the Tories had to say, because nothing has changed for them. They believe that they can continue to go on as they are, despite the fact that the people of Scotland have told them to stop. If they believe that they can ignore the people of Scotland, I am afraid that they have an even greater shock coming than the one that they saw last Thursday.

The insulting way in which the Tory party treated the debate was extraordinary. They thought that it was of no relevance to anybody. They want it over with because they do not believe that the people of Scotland should be listened to. The people of Scotland have spoken—[Interruption.] There we have Murdo Fraser: nothing has changed, apparently.

The Presiding Officer

Order, please.

Michael Russell

There is Ruth Davidson pointing her finger at me, but nothing has changed. What has changed is that she is not even the leader of the party any more. [Interruption.]

The Presiding Officer

Colleagues!

Michael Russell

At least we have been spared the spectacle of her swim in Loch Ness—but only just.

The bill is a framework bill; it provides the opportunity to move forward. I was interested in what Neil Findlay said. I do not agree with him—that will not be a shock to anybody; not even seasonal goodwill will make me agree with Neil Findlay—but he made a key point. The reality of the situation is that the Labour Party needs to change where it is on these issues. I think that it is regrettable that it has not looked at the issue today and said, “In the circumstances, let us, as a party, abstain on these matters, because we are consulting on them and thinking about our future”—[Interruption.] Well, let us see who abstains.

I think that the situation is to be regretted because the bill is the gold standard—[Interruption.] Sorry, but it is the gold standard. As we hear during every First Minister’s question time, it suits the Conservatives to run down the good things that are happening in Scotland. Their only selling point is to say that Scotland is so terrible that we must allow it to be run from Westminster. That is no longer a tenable position. The reality is that the bill is the gold standard, but I am always willing to enter into discussions, even with Neil Findlay—especially with Neil Findlay—to see whether we can do more and find a way to improve things and make sure—

Neil Findlay

Will the cabinet secretary take an intervention?

Michael Russell

Of course I will.

Neil Findlay

Will the cabinet secretary address the two points that I made about the attempt to manipulate the role of the Electoral Commission and the question, and the insanity of having a referendum when we do not know what is happening with Brexit?

Michael Russell

I have to ask: if not now, when? I ask members to look at the circumstances that we are in. We are about to be dragged out of the EU against our will but, according to Neil Findlay, that is not enough to allow us to vote on our own future. I am, however, willing to have a dialogue, because this is a framework bill. There is no proposal in the bill to hold an independence referendum on any date and with any question—that is important.

On the Electoral Commission, the Government has worked very hard and closely with the commission. If members look at what I have said today, they will see that we have worked with the Electoral Commission on every single part of the bill. The bill is the gold standard. The Tories do not want it to be, because the Tories do not want a referendum.

However, my final point is that the Tories have already agreed that there should be a referendum. I shall look forward to reading the Official Report of the debate, because when Adam Tomkins was getting very excited about the question, he seemed to make it clear that an independence referendum was about to happen. Do not rush us, Mr Tomkins; we have a campaign to have, but I am sure that the campaign will produce—[Interruption.] I am sure that it will produce the result that Scotland wants. If the Tories refuse to listen to Scotland, that will be their final wake-up call.

I support the motion in my name.

The Presiding Officer

That concludes the stage 3 debate. I am minded to accept a motion without notice to bring forward decision time to now.

Motion moved,

That, under Rule 11.2.4, Decision Time be brought forward to 4.34 pm.—[Graeme Dey]

Motion agreed to.

The Presiding Officer (Ken Macintosh)

There is one question to be put as a result of today’s business. The question is, that motion S5M-20237, in the name of Michael Russell, on the Referendums (Scotland) Bill at stage 3, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fee, Mary (West Scotland) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Griffin, Mark (Central Scotland) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Sarwar, Anas (Glasgow) (Lab)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Abstentions

Findlay, Neil (Lothian) (Lab)
Lennon, Monica (Central Scotland) (Lab)

The Presiding Officer

The result of the division is: For 68, Against 54, Abstentions 2.

The Referendums (Scotland) Bill is therefore passed. [Applause.]

Motion agreed to,

That the Parliament agrees that the Referendums (Scotland) Bill be passed.

The Presiding Officer

I wish members a merry Christmas and look forward to seeing them in the new year.