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Chamber and committees

Meeting date: Thursday, December 19, 2019

Meeting of the Parliament 19 December 2019

Agenda: General Question Time, First Minister’s Question Time, Business Motion, Referendums (Scotland) Bill: Stage 3, Referendums (Scotland) Bill, Decision Time


Contents


Referendums (Scotland) Bill

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.

15:38  

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.

15:45  

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.

15:50  

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.

15:55  

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.

15:59  

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.

16:03  

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.

16:08  

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.

16:12  

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.

16:17  

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.

16:21  

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.

16:27  

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.