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Referendums (Scotland) Bill

Overview

This Bill would give the Scottish Government power to decide that a referendum can be held in Scotland and to set the rules for the referendum. The rules include who gets to vote and how campaigns are regulated.

The Bill would only allow for referendums on issues which the Scottish Parliament has responsibility for. These are known as a ‘devolved’ matters.

There's UK legislation which covers UK-wide referendums. But there's no Scottish legislation to provide a framework for how referendums should be run.

What does the Bill do?

The Bill would allow for Scottish referendums to be held without the Parliament passing a specific Act each time.

Currently, 'primary legislation' (an Act) is required if the Scottish Parliament wants to hold a referendum. An Act is a Bill that’s been passed by the Parliament and been given Royal Assent (formally approved).

Under the Bill, 'secondary legislation' could be used to propose that a referendum on a particular issue should be held. By secondary legislation, we mean regulations that would:

  • set out the exact question that would be asked
  • decide the date of the referendum.

The regulations would need to be approved by the Parliament before the referendum could be held.

The Bill aims to ensure referendums are fair by making the rules for them clear. For example, setting processes for counting votes and the amount of money spent on campaigning.

You can find out more in the Explanatory Notes document that explains the Bill.

Why the Bill was created

The Scottish Government wants to create a framework for how any future referendums on devolved matters will be held. It wants any referendum to be managed to a high standard. It thinks that having the framework in this Bill will help that.

This Bill does not relate to a specific referendum but on 24 April 2019, the First Minister made a statement to the Scottish Parliament called 'Brexit and Scotland's Future'. In it, she said the Scottish Government would introduce this legislation so that giving people a choice on Scottish independence in the current term of Parliament was an option.

You can find out more in the Policy Memorandum document that explains the Bill.

Becomes an Act

The Referendums (Scotland) Bill passed by a vote of 68 for, 54 against and 2 abstentions. The Bill became an Act on 29 January 2020.

Introduced

The Scottish Government sends the Bill and related documents to the Parliament.

Referendums (Scotland) Bill as introduced

Related information from the Scottish Government on the Bill

Opinions on whether the Parliament has the power to make the law (Statements on Legislative Competence)

Information on the powers the Bill gives the Scottish Government and others (Delegated Powers Memorandum)

Scottish Parliament research on the Bill 

Stage 1 - General principles

Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.

Have your say

The deadline for sharing your views on this Bill has passed. Read the views that were given.

Committees involved in this Bill

Who examined the Bill

Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.

It looks at everything to do with the Bill.

Other committees may look at certain parts of the Bill if it covers subjects they deal with.

Who spoke to the lead committee about the Bill

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First meeting transcript

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?

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?

James Kelly

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

Neil Bibby

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

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?

Neil Bibby

Even if we leave the European Union?

Neil Bibby

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

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?

Neil Bibby

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

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?

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?

Murdo Fraser

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

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.

Murdo Fraser

Thank you.

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Second meeting transcript

The Convener

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

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

Dr Alan Renwick (University College London)

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

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

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

Professor Justin Fisher (Brunel University London)

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

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

Angela Constance (Almond Valley) (SNP)

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

“determined on a case-by-case basis”.

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

Dr Renwick

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

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

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

Professor Fisher

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

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

Angela Constance

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

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

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

The Venice commission talks about the need for

“fundamental aspects of referendum law”

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

Professor Fisher

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

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

Dr Renwick

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

Angela Constance

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

Professor Fisher

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

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

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

The Convener

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

Are you finished, Angela?

Angela Constance

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

Dr Renwick

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

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

09:15  



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

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

The Convener

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

Dr Renwick

Yes.

Adam Tomkins (Glasgow) (Con)

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

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

Dr Renwick

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

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

Adam Tomkins

Do you agree with that, Professor Fisher?

Professor Fisher

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

Adam Tomkins

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

“defined more tightly or removed.”

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

Dr Renwick

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

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

Adam Tomkins

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

Dr Renwick

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

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

Professor Fisher

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

Adam Tomkins

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

The Convener

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

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

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

Dr Renwick

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

The Convener

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

Dr Renwick

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

The Convener

I understand that.

Adam Tomkins

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

Dr Renwick

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

Adam Tomkins

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

Dr Renwick

Yes.

Professor Fisher

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

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

Tom Arthur (Renfrewshire South) (SNP)

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

Dr Renwick

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

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

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

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

09:30  



Tom Arthur

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

Dr Renwick

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

Tom Arthur

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

Professor Fisher

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

Tom Arthur

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

Dr Renwick

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

Tom Arthur

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

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

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

Dr Renwick

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

Patrick Harvie (Glasgow) (Green)

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

Dr Renwick

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

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

Patrick Harvie

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

Dr Renwick

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

Patrick Harvie

Okay. Thank you.

The Convener

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

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

We discussed that earlier.

You go on to say that

“In the event of a vote for independence”—

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

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

Will you expand on that?

Patrick Harvie

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

The Convener

No? That is a shock to me.

Dr Renwick

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

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

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

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

The Convener

Does Justin Fisher want to say something about that?

Professor Fisher

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

The Convener

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

09:45  



John Mason

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

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

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

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

Professor Fisher

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

John Mason

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

Professor Fisher

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

John Mason

How will we fix that?

Professor Fisher

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

John Mason

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

Professor Fisher

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

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

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

John Mason

Despite the fact that it is a smaller area.

Professor Fisher

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

John Mason

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

Professor Fisher

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

John Mason

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

Professor Fisher

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

John Mason

Does Dr Renwick have anything to say about that?

Dr Renwick

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

John Mason

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

The Convener

Yes.

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

“risk of multiple nonregistered campaigns challenging the primacy”

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

Professor Fisher

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

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

The Convener

Did you look at the Electoral Commission figures for Scotland?

Professor Fisher

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

The Convener

But not the detailed spending pattern.

Professor Fisher

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

The Convener

Okay. Does John Mason have any other questions?

John Mason

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

Professor Fisher

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

John Mason

That is great. Thanks very much.

The Convener

Alexander Burnett has a question on Electoral Commission issues.

Alexander Burnett (Aberdeenshire West) (Con)

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

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

Dr Renwick

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

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

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

Professor Fisher

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

Alexander Burnett

Thank you—that is very clear.

James Kelly (Glasgow) (Lab)

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

Professor Fisher

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

Gordon MacDonald

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

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

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

Dr Renwick

No. Why do you think it might create confusion?

Gordon MacDonald

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

Dr Renwick

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

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

Gordon MacDonald

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

Dr Renwick

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

10:00  



Gordon MacDonald

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

Dr Renwick

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

Gordon MacDonald

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

Dr Renwick

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

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

Gordon MacDonald

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

Dr Renwick

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

Professor Fisher

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

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

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

The Convener

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

Patrick Harvie

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

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

Professor Fisher

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

Patrick Harvie

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

Professor Fisher

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

Patrick Harvie

Dr Renwick, do you have anything to add?

Dr Renwick

No.

Patrick Harvie

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

Professor Fisher

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

Patrick Harvie

Thank you.

James Kelly

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

Dr Renwick

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

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

Professor Fisher

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

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

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

Patrick Harvie

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

Professor Fisher

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

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

Patrick Harvie

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

Professor Fisher

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

Patrick Harvie

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

10:15  



Professor Fisher

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

Patrick Harvie

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

Professor Fisher

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

Patrick Harvie

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

Professor Fisher

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

Patrick Harvie

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

Dr Renwick

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

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

The Convener

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

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

It recommends amending the bill

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

on the basis that this is proportionate and

“does not impose an unreasonable burden”.

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

Dr Renwick

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

Professor Fisher

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

The Convener

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

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

What is your view on that?

Professor Fisher

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

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

The Convener

The horse will already have bolted.

Professor Fisher

Quite.

Dr Renwick

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

Professor Fisher

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

Alexander Burnett

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

Dr Renwick

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

Quite a few places have turnout thresholds or what we call electorate thresholds, as was used in Scotland in 1979. Turnout thresholds are clearly undesirable and a bad idea because they encourage people who are in danger of losing to suppress turnout in order to invalidate the vote. Electorate thresholds—in which the percentage that must vote in favour of a proposal is set; it could be 40 per cent, for example—do not have such clear theoretical problems. However, it seems to me that use of an electorate threshold was discredited by the 1979 experience, so you would be a brave politician to recommend introducing one in Scotland.

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

Professor Fisher

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

The Convener

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

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

10:24 Meeting suspended.  



10:30 On resuming—  



The Convener

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

Angela Constance

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

Jess Sargeant (Institute for Government)

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

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

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

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

Michael Clancy (Law Society of Scotland)

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

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

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

Angela Constance

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

Jess Sargeant

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

Michael Clancy

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

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

and the “entitlement to vote”.

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

“effect to recommendations of the Electoral Commission”.

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

Angela Constance

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

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

Jess Sargeant

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

Angela Constance

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

Jess Sargeant

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

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

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

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

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

Angela Constance

Thank you. Does Mr Clancy have anything to add?

Michael Clancy

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

The Convener

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

Jess Sargeant

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

Michael Clancy

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

The Convener

That takes us neatly to a question from Adam Tomkins.

Adam Tomkins

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

Michael Clancy

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

10:45  



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

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

Jess Sargeant

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

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

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

Adam Tomkins

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

Jess Sargeant

Yes.

John Mason

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

Jess Sargeant

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

Michael Clancy

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

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

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

John Mason

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

Jess Sargeant

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

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

John Mason

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

Jess Sargeant

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

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

John Mason

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

Jess Sargeant

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

John Mason

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

Jess Sargeant

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

James Kelly

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

Jess Sargeant

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

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

Michael Clancy

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

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

The Convener

Patrick Harvie, you are interested in database issues.

Patrick Harvie

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

Michael Clancy

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

Patrick Harvie

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

Jess Sargeant

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

Patrick Harvie

Not to worry. Thank you.

Alexander Burnett

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

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

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

Jess Sargeant

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

11:00  



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

Michael Clancy

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

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

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

or

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

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

The Electoral Commission uses stronger language:

“The Commission firmly recommends that it must be required to provide views and advice to the Scottish Parliament on the wording of any referendum question”.

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

Jess Sargeant

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

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

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

The Convener

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

Jess Sargeant

Yes—that is the point.

The Convener

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

Jess Sargeant

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

Michael Clancy

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

Gordon MacDonald

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

Jess Sargeant

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

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

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

Michael Clancy

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

Gordon MacDonald

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

Michael Clancy

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

Jess Sargeant

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

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

Gordon MacDonald

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

Jess Sargeant

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

Gordon MacDonald

Okay.

The Convener

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

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



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Third meeting transcript

The Convener

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

The Scottish Government officials explained to us that the intention of the bill is that

“it will be possible for the framework to be used for different polls, so there needs to be some flexibility on the circumstances and the packaging.”—[Official Report, Finance and Constitution Committee, 26 June 2019; c 26.]

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

Dr Toby James (University of East Anglia)

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

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

Dr Theresa Reidy (University College Cork)

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

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

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

The Convener

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

Professor Chris Carman (Stevenson Trust for Citizenship)

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

Dr Andrew Mycock (University of Huddersfield)

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

Adam Tomkins (Glasgow) (Con)

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

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

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

Professor Carman

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

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

Adam Tomkins

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

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

Dr James

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

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

10:45  



Dr Mycock

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

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

Dr Reidy

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

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

Professor Carman

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

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

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

The Convener

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

Alex Rowley

Mine is pronounced Alec.

The Convener

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

Alexander Burnett

Thank you, convener.

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

Dr James

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

Dr Mycock

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

Dr Reidy

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

Professor Carman

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

Alexander Burnett

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

Professor Carman

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

Tom Arthur (Renfrewshire South) (SNP)

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

Professor Carman

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

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

Dr Mycock

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

Dr Reidy

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

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

Tom Arthur

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

Professor Carman

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

11:00  



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

Tom Arthur

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

Professor Carman

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

Tom Arthur

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

Alex Rowley

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

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

Dr Reidy

It has happened twice.

Alex Rowley

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

Dr Mycock

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

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

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

Alex Rowley

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

Dr Mycock

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

Dr Reidy

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

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

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

The Convener

Professor Fisher, who gave evidence last week, said:

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

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

Professor Carman

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

The Convener

Does that not create confusion if the question then changes?

Professor Carman

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

Neil Bibby

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

Dr James

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

Dr Mycock

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

The Convener

John Mason has a question about the Irish experience.

John Mason

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

Dr Reidy

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

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

John Mason

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

Dr Reidy

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

John Mason

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

Dr Reidy

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

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

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

John Mason

Is that the only time that you have referendums?

Dr Reidy

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

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

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

11:15  



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

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

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

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

John Mason

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

Dr Reidy

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

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

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

John Mason

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

Professor Carman

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

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

John Mason

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

Professor Carman

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

Dr Mycock

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

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

John Mason

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

Dr Mycock

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

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

Gordon MacDonald

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

Dr James

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

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

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

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

Gordon MacDonald

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

Dr James

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

Dr Mycock

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

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

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

Gordon MacDonald

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

Dr Mycock

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

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

11:30  



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

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

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

Dr James

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

Professor Carman

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

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

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

Gordon MacDonald

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

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

Dr Reidy

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

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

Professor Carman

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

Dr James

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

Gordon MacDonald

Thank you.

Patrick Harvie (Glasgow) (Green)

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

Dr Reidy’s submission says:

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

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

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

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

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

“Now the EU wants to ban tea kettles”.

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

Dr Reidy

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

Patrick Harvie

That was my fear.

Dr Reidy

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

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

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

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

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

Patrick Harvie

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

Dr Reidy

Sorry about that.

Patrick Harvie

No, I totally agree.

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

Dr Mycock

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

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

The Convener

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

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

the six-month rule—

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

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

11:45  



Dr James

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

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

The Convener

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

Adam Tomkins

Just leave it.

The Convener

Thank you, deputy convener, for counselling me properly.

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

Meeting closed at 11:47.  



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Fourth meeting transcript

The Convener (Bruce Crawford)

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

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

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

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

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

Pete Wildman (Scottish Assessors Association)

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

Chris Highcock (Electoral Management Board for Scotland)

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

Andy Hunter (Association of Electoral Administrators)

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

The Convener

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

Pete Wildman

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

Chris Highcock

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

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

Andy Hunter

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

Mark Conaghan

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

The Convener

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

Mark Conaghan

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

Pete Wildman

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

Chris Highcock

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

Andy Hunter

I concur with that and have no further points.

The Convener

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

Adam Tomkins (Glasgow) (Con)

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

Mark Conaghan

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

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

Chris Highcock

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

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

Andy Hunter

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

Adam Tomkins

Pete Wildman, would you like to answer?

Pete Wildman

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

Adam Tomkins

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

09:45  



Chris Highcock

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

Pete Wildman

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

Mark Conaghan

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

Adam Tomkins

But it did not set the referendum question.

Mark Conaghan

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

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

Adam Tomkins

Thank you.

The Convener

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

Tom Arthur (Renfrewshire South) (SNP)

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

Pete Wildman

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

Andy Hunter

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

Mark Conaghan

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

Tom Arthur

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

Mark Conaghan

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

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

Pete Wildman

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

Mark Conaghan

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

Chris Highcock

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

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

Andy Hunter

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

The Convener

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

Murdo Fraser (Mid Scotland and Fife) (Con)

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

Pete Wildman

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

Chris Highcock

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

Mark Conaghan

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

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

Andy Hunter

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

Murdo Fraser

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

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

Mark Conaghan

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

Pete Wildman

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

Chris Highcock

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

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

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

Andy Hunter

I concur with those points.

The Convener

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

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

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

10:00  



Chris Highcock

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

Mark Conaghan

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

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

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

The Convener

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

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

Alexander Burnett (Aberdeenshire West) (Con)

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

Pete Wildman

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

Chris Highcock

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

Mark Conaghan

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

Alexander Burnett

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

Chris Highcock

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

Patrick Harvie (Glasgow) (Green)

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

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

What are your views on either of those options?

Pete Wildman

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

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

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

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

Patrick Harvie

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

Pete Wildman

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

Patrick Harvie

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

Pete Wildman

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

Patrick Harvie

There are some other nodding heads.

Mark Conaghan

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

Patrick Harvie

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

Pete Wildman

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

Patrick Harvie

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

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

Chris Highcock

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

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

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

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

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

Pete Wildman

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

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

Chris Highcock

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

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

Mark Conaghan

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

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

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

10:15  



Chris Highcock

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

The Convener

Why wait? Why not do it now?

Chris Highcock

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

The Convener

Fair point—I surrender.

Gordon MacDonald (Edinburgh Pentlands) (SNP)

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

Pete Wildman

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

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

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

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

Gordon MacDonald

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

Pete Wildman

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

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

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

Gordon MacDonald

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

Pete Wildman

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

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

Mark Conaghan

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

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

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

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

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

Andy Hunter

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

Pete Wildman

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

Chris Highcock

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

The Convener

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

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

Is that your experience?

Pete Wildman

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

The Convener

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

John Mason (Glasgow Shettleston) (SNP)

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

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

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

Andy Hunter

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

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

John Mason

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

Mark Conaghan

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

Andy Hunter

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

John Mason

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

Andy Hunter

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

10:30  



Mark Conaghan

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

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

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

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

John Mason

Has that happened so far?

Mark Conaghan

It has not happened yet, but it could.

John Mason

I get that.

Mark Conaghan

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

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

John Mason

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

Mark Conaghan

Yes.

John Mason

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

Mark Conaghan

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

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

John Mason

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

Chris Highcock

Yes.

John Mason

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

Chris Highcock

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

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

John Mason

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

Chris Highcock

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

The Convener

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

Chris Highcock

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

Pete Wildman

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

Chris Highcock

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

John Mason

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

Chris Highcock

That is a separate question.

Mark Conaghan

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

The Convener

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

10:36 Meeting suspended.  



10:42 On resuming—  



The Convener

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

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

Dame Sue Bruce (Electoral Commission)

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

The Convener

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

Murdo Fraser

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

10:45  



Bob Posner (Electoral Commission)

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

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

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

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

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

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

Murdo Fraser

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

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

Bob Posner

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

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

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

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

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

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

Andy O’Neill (Electoral Commission)

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

Murdo Fraser

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

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

Bob Posner

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

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

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

Murdo Fraser

Okay.

Andy O’Neill

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

John Mason

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

Bob Posner

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

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

John Mason

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

Bob Posner

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

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

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

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

John Mason

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

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

Bob Posner

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

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

John Mason

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

Bob Posner

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

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

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

11:00  



John Mason

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

Bob Posner

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

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

Andy O’Neill

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

Patrick Harvie

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

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

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

Andy O’Neill

I will start and my colleagues will chip in accordingly.

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

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

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

Patrick Harvie

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

Andy O’Neill

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

Patrick Harvie

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

Andy O’Neill

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

Bob Posner

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

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

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

Patrick Harvie

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

Bob Posner

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

Patrick Harvie

Would it be straightforward to achieve that?

Bob Posner

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

Patrick Harvie

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

The Convener

Just do it.

Patrick Harvie

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

Bob Posner

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

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

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

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

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

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

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

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

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

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

11:15  



Andy O’Neill

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

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

Patrick Harvie

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

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

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

Dame Sue Bruce

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

Patrick Harvie

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

Dame Sue Bruce

Yes.

Bob Posner

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

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

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

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

The Convener

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

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

Bob Posner

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

The Convener

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

Bob Posner

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

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

The Convener

What are the timescales for that work?

Bob Posner

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

Alexander Burnett

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

Dame Sue Bruce

Yes. We strongly believe that the Electoral Commission should be asked to test the question. I refer again to putting the voter at the centre of the process. We think that a formal testing of the question helps to provide confidence and assurance to the voter and to the Parliament that is posing the question and, with regard to the integrity of the process, to establish that the question is clear, transparent and neutral in its setting.

Alexander Burnett

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

Andy O’Neill

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

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

Alexander Burnett

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

Bob Posner

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

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

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

Alex Rowley (Mid Scotland and Fife) (Lab)

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

Andy O’Neill

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

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

Alex Rowley

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

Dame Sue Bruce

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

11:30  



Adam Tomkins

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

“The Bill should be amended to ensure that:

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

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

Dame Sue Bruce

That is correct, yes.

Adam Tomkins

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

Dame Sue Bruce

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

Bob Posner

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

Adam Tomkins

So integrity is part of intelligibility.

Dame Sue Bruce

Yes.

Bob Posner

Yes.

Adam Tomkins

Okay, thank you.

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

Andy O’Neill

Yes.

Adam Tomkins

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

Dame Sue Bruce

Yes.

Adam Tomkins

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

Bob Posner

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

Adam Tomkins

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

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

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

Andy O’Neill

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

Bob Posner

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

Adam Tomkins

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

Andy O’Neill

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

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

Adam Tomkins

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

Bob Posner

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

Adam Tomkins

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

The Convener

I have.

Adam Tomkins

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

The Convener

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

Alex Rowley

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

The Convener

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

Alex Rowley

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

Adam Tomkins

I would like to hear the answer to my question.

The Convener

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

Bob Posner

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

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

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

The Convener

Gordon MacDonald has a question.

Gordon MacDonald

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

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

Dame Sue Bruce

Yes.

Andy O’Neill

Yes.

Gordon MacDonald

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

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

Why was that?

Andy O’Neill

Sorry, but could you repeat that question?

Gordon MacDonald

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

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

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

Andy O’Neill

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

Gordon MacDonald

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

Andy O’Neill

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

“Should Scotland be an independent country?”

Gordon MacDonald

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

Bob Posner

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

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

Gordon MacDonald

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

Dame Sue Bruce

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

Andy O’Neill

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

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

11:45  



Gordon MacDonald

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

Dame Sue Bruce

That would follow the evidence.

Andy O’Neill

It would depend on the evidence.

Patrick Harvie

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

Dame Sue Bruce

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

Bob Posner

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

The Convener

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

Angela Constance (Almond Valley) (SNP)

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

Andy O’Neill

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

Angela Constance

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

Andy O’Neill

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

The Convener

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

Tom Arthur

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

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

Bob Posner

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

Tom Arthur

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

Bob Posner

Yes.

Andy O’Neill

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

Alex Rowley

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

Bob Posner

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

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

Andy O’Neill

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

The Convener

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

Angela Constance

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

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

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

Dame Sue Bruce

That is a fair question.

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

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

Bob Posner

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

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

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

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

Angela Constance

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

“any expenditure incurred by the Commission”

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

Andy O’Neill

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

The Convener

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

Meeting closed at 11:58.  



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Fifth meeting transcript

The Convener (Bruce Crawford)

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

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

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

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

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

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

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

The Convener

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

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

Michael Russell

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

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

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

The Convener

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

Michael Russell

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

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

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

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

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

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

Adam Tomkins (Glasgow) (Con)

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

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

Michael Russell

Yes. We have never hidden the fact that I see this bill being used by the Parliament and the Government to create the referendum for independence. However, it is also available to create other referenda. As you know, it is a reverse of the process that took place in 2013-14.

Adam Tomkins

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

Michael Russell

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

Adam Tomkins

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

Michael Russell

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

Adam Tomkins

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

Michael Russell

I would not use the word “only”; the Government is committed to a future referendum, but it is perfectly possible that there could be others. Members of the committee could propose or suggest others, and the bill would be available to them.

Adam Tomkins

As could you—so why don’t you? What are the other issues that you, as Cabinet Secretary for Government Business and Constitutional Relations, think should be put to the people of Scotland in the form of a referendum under the bill?

Michael Russell

I can speak only for my portfolio. As I am the cabinet secretary for constitutional relations, I am dealing with a constitutional issue. Other colleagues would no doubt have views on the matter; none of those issues is presently Government policy, because colleagues have not brought them forward. I have, however, indicated that an area of moral concern might be part of such consideration. I do not think that I am doing anything other than providing the circumstances in which referenda can take place, without hiding the fact that I would like to see a referendum on independence.

Adam Tomkins

That is understood—thank you.

I turn to the detail of two or three of the ministerial order-making powers that are contained in the bill. Section 1(1) provides that

“The Scottish Ministers may by regulations provide for a referendum to be held throughout Scotland on one or more questions.”

You said that you have carefully studied the evidence that this committee and the DPLR Committee have received. Do you accept that the force of that evidence is that section 1(1) cannot stand?

Michael Russell

I accept that there is strong opinion that there should be a different type of scrutiny, or that there could be a different type of legislation. It may well be that, in certain circumstances, there should be primary legislation. I am open to that discussion.

Adam Tomkins

Do you think that a future independence referendum should be the subject of bespoke primary legislation, or do you think that such a referendum—given that that is the only example of a referendum that you are prepared to talk about—should be triggerable under a provision such as section 1(1)?

Michael Russell

It is quite clear—from the evidence that I gave to the DPLR Committee, which I am giving again here—that there is an argument to be made for having primary legislation for issues that are subject to a section 30 order. I am not going to resist that. I hope that, in those circumstances, we can craft a series of amendments that would allow that to happen.

Adam Tomkins

The effect of those amendments would be to ensure that any future referendum in Scotland that required a section 30 order, which would include any future independence referendum, would require primary legislation, rather than a secondary instrument.

Michael Russell

I have said that I am absolutely open to that as an amendment to the bill. I found the discussion that I had with the DPLR Committee very helpful in that regard.

Adam Tomkins

That is helpful—thank you.

Let us move on to ministers’ powers to specify the referendum period, on which we have received equally strong representations from our witnesses. What is your reaction to that?

Michael Russell

A referendum period is as much a technical issue as any other. A referendum period is intended to allow those who are organising the referendum to do so in an efficient and effective manner. I can see no objection to that being specified by secondary legislation. However, if the mood of the Parliament is that it should not be, I am open to having a discussion on that.

I go back to what I said at the beginning: I treat the process of legislation as starting with a proposal, discussing that proposal and endeavouring to improve that proposal.

In the evidence that you have heard, some people have argued that the period has varied between a minimum of four weeks and 10 weeks. I am absolutely open to that being discussed and settled. That seems to represent a variable period if we accept that there are different types of referenda, so a variable period by order would seem to be entirely reasonable. However, if the Parliament wants to specify a period in primary legislation, as it would do in a referendum that required primary legislation, for instance, so be it.

Adam Tomkins

That is also helpful—thank you.

You have been very patient, convener. Depending on the answer, this will be my final question.

The Convener

Put your final question, and we will see how it goes.

Adam Tomkins

A third issue that is reflected in the evidence that we have received is the very broad power in section 37 that enables ministers to amend the eventual act by regulation. Are there circumstances in which you can see the force of the argument that that power should be curtailed?

Michael Russell

We need to discuss what we are endeavouring to do. I am not saying that that power should not be amended in the bill. However, what are we attempting to do? What we are attempting to do has been broadly welcomed, and that is to have dynamic legislation and to ensure that electoral legislation is not static. We can see how PPERA, which was enacted in 2000, has atrophied and how it has had to be subject to occasional change. I am very much open to finding a lock on that mechanism that reassures people that the bill is not about amending by the back door, but I want to meet the objective of developing dynamic legislation.

10:15  



Electoral legislation tends to be shoved to one side and dealt with only occasionally. However, things are changing quite a lot in this area, and we might talk later today about digital imprints. Where we sit now, it is difficult to see how that legislation might work but that might not be true in two years’ time. If it is not true in two years, it would be helpful if we were able to amend the act by upgrading it and making it better.

I am happy to discuss how we could make that more acceptable to the Parliament, but there is still an argument for making sure that we can use the section 37 powers in a way that means we can have dynamic electoral legislation.

Adam Tomkins

We will have to come back to that issue at stage 2.

The Convener

It is interesting that—if I have got this right—the Delegated Powers and Law Reform Committee also looked at this area. I want to make sure that we have everything on the record. If I am cutting across a question that Tom Arthur was going to ask, please forgive me.

The Delegated Powers and Law Reform Committee said:

“The Committee focused its scrutiny on the delegated powers contained within the first three sections of the Bill. It was content with the delegated powers provisions in sections 11, 34, 37, and 38 and in the Schedule.”

I think that we were discussing section 37.

Michael Russell

Yes, it was section 37.

The Convener

What is your reaction to that?

Michael Russell

We are on the same page on this. I think that we need dynamic legislation and that was clearly accepted by the Delegated Powers and Law Reform Committee. However, it is not just about the Delegated Powers and Law Reform Committee; this committee has heard evidence with some concerns. Mr Tomkins brought up those concerns and I am willing to discuss them, as long as we can meet the objective of having dynamic legislation.

Tom Arthur (Renfrewshire South) (SNP)

I have a brief supplementary question on possible future referenda. I refer to what you said about the Delegated Powers and Law Reform Committee and what is in that committee’s report. Earlier, you mentioned areas of moral significance, such as assisted dying. That is likely to be explored again in session 6, but it is likely to arise from a member’s bill. Would such a bill be able to plug into the framework of this bill?

Michael Russell

I stand to be corrected by the clerks, who know the regulations better than I do. I think that a member’s bill cannot have a financial resolution. If a member’s bill required expenditure on a referendum, I wonder whether that would be possible. That is off the top of my head. I see that the clerks are conferring; they might have a better answer.

There is no reason why the framework of the bill should not be used for that sort of thing, but there are difficulties with a member’s bill.

Tom Arthur

Such proposals have previously failed to command the support of Parliament, but there might be a way round that if the issue were to be put to the people. Even if it was possible for a member’s bill to make provision for a referendum, it would be beyond its scope and capacity to have a piece of legislation that detailed.

Michael Russell

It is unlikely, but I would not say that it would be impossible. A question has been raised with me about local referenda; again, as I understand it, there is already legislation that allows local referenda, but it might be unduly onerous to expect local referenda to observe every detail of the framework. The bill does not impede or permit local referenda; it sits to one side of that argument.

Tom Arthur

Thank you.

The Convener

We will move on to further areas of questioning.

Neil Bibby (West Scotland) (Lab)

As drafted, the bill precludes the Electoral Commission from fully testing a question when the issue has already been put to a referendum. Am I correct in saying that the Scottish Government’s justification for demanding a second independence referendum is that there has been a material change in circumstances following the result of the referendum on the United Kingdom leaving the European Union?

Michael Russell

I can see where your question is going, Mr Bibby. The request for a referendum in Scotland is based on the manifesto, which sought a mandate based on whether there was a material change, and it specified what that material change was. I do not think that that justifies a change in the question, but I see where you are coming from.

Neil Bibby

Do you believe that there has been a material change in circumstances? As you know, for the EU referendum in 2016, the Electoral Commission tested a question that was similar to the one that was used in 2014 but ended up recommending a different form of words. Given that your justification for having a second independence referendum is a material change in circumstances, why are you so reluctant to allow the Electoral Commission to fully test appropriate questions that reflect the experience that has been gained since 2014, particularly given that it adopted a different form of question in 2016?

Michael Russell

That is a fair question. I want to be very clear about my position: I am not against testing questions. In fact, I believe in testing questions, and the bill indicates that questions should be tested. I am against retesting in circumstances that do not require that.

Let me go back to what the Electoral Commission said in 2012 and 2013, when it tested the question that was finally used, because it is important that we clear away the myths and look at the facts. The question that the Scottish Government proposed in 2012 was:

“Do you agree that Scotland should be an independent country?”

The Electoral Commission’s recommendation was:

“Should Scotland be an independent country?”

In its reasoning, it says at paragraph 5.26:

“In all aspects of our question testing, one version we tested was clearly preferred by most participants. We recommend this version because it is:

• a more neutral formulation than ‘Do you agree ..?’

• it does not ask for a judgement of someone else’s view or decision

• direct

• short and simple”.

That question was used in 2014, and it has been used in opinion polls something like 56 times since then. I think that, in the past 14 months, there have been only 11 instances in which that question was not used. In our view, the question is in current use. The question met the criteria—indeed, we changed our question in order to meet those criteria. It has been tested.

Any allegation that I do not want testing is simply not true. I am entirely in favour of testing. Any new question that arises in a new referendum should, of course, be tested. The question that was used in 2014 is a question that is in current use. In such circumstances, it has been tested and therefore fits with the bill. Section 3(7) says:

“This section does not apply in relation to a question or statement if the Electoral Commission have—

(a) previously published a report setting out their views as to the intelligibility of the question or statement, or

(b) recommended the wording of the question or statement.”

That fits precisely with what we have been talking about. The position, as set out in the bill, is the one that I have taken and, at present, it is the position that I want to hold.

Neil Bibby

I acknowledge the evidence that you have cited from 2013. However, over the past few weeks, witnesses have been overwhelmingly clear that the Electoral Commission should be involved in testing the question. Dr James said:

“I think that the Electoral Commission should be fully involved. I cannot see any advantage in limiting its role”.—[Official Report, Finance and Constitution Committee, 11 September 2019; c 30.]

Professor Fisher said:

“I think that excluding the Electoral Commission ... would be inadvisable”.—[Official Report, Finance and Constitution Committee, 4 September 2019; c 19.]

Those concerns were shared by Michael Clancy and Jess Sargeant. Dr Mycock said:

“It is appropriate for every referendum—if it is repeating an issue or if the material circumstances have changed—to go through that process”,

in other words, testing the question,

“even if it is simply a confirmatory process, so that you get buy-in from as many citizens as possible on the legitimacy of the particular referendum.”—[Official Report, Finance and Constitution Committee, 11 September 2019; c 30.]

Are you prepared to ignore the expert advice that we have received by continuing to sideline the Electoral Commission, through the way in which the bill is drafted? If so, why are you not concerned about getting buy-in from as many citizens as possible?

Michael Russell

I am entirely in favour of testing the question, as those witnesses are. The question has been tested and is in current use, which is an important factor that needs to be factored into any evidence that is received. I repeat: the question has been used more than 50 times. It is the question that is understood, so it should be carefully considered rather than simply cast aside.

I am in favour of testing questions—there is no doubt about that. However, in this case, the question has been tested, and the Electoral Commission recommended the question that was used and which continues to be used. That strikes me as extremely important.

Alexander Burnett (Aberdeenshire West) (Con)

You say that the question has already been tested, but that was some time ago. Are you saying that bodies such as the Electoral Commission do not learn from experience or over time?

Michael Russell

I am not saying that. I am saying that, when we have a question that is not only tested but in current use, that question is understood. It has been used again and again, so I want to know why people think that it should not be used again and again.

Some people argue that there should be a different formulation. Some people argue that there should be further restrictions on the franchise—they desire that there should be, say, a two-thirds majority for a change to be made. Those are legitimate positions, but they do not seem to be fair and democratic positions.

I am in favour of doing exactly what was done and remaining true to what was passed by the Electoral Commission, which is understood and is still in current usage.

Alexander Burnett

I agree that there may be differing views on the franchise and all the rest of it, but does it not go to the heart of the credibility of the bill that you are prepared to say that your view on the matter overrules the credibility of involving the Electoral Commission?

Michael Russell

No. I have quoted what the Electoral Commission said and I am in favour of testing. I think that that is an entirely consistent and principled position. The question has been tested. My view would apply to any question in such circumstances. I am in favour of testing, but I am not in favour of confusing people. If a question has been used again and again and it continues to be in use, it would be a serious step to try to throw it out.

Alexander Burnett

I agree that that may be a point, but is the fact that you are saying that the question has been tested not less credible than the Electoral Commission saying the same thing?

Michael Russell

Clearly, if there is a difference of opinion, there is a difference of opinion, but the question has been tested by the Electoral Commission, and I quoted its report on the matter.

Gordon MacDonald (Edinburgh Pentlands) (SNP)

When I asked the Electoral Commission some questions on the subject last week, it highlighted that the question was its question and that it was easy to understand, clear, simple and neutral. Over the past eight years, 231 opinion polls have carried that question, and 3.6 million people voted on it. Is there a danger that we would create confusion in the minds of the electorate if, at this late stage, we changed the wording of any referendum question?

Michael Russell

I think that that would be a danger if a question was in current usage, and the question that we are discussing is in current usage. There have been suggestions that we should shift to, for example, leave or remain. Anybody who makes that suggestion has clearly not thought it through very well, given the currency of leave and remain.

The question was tested. As the Electoral Commission indicated, it is

“direct ... short and simple”

and

“it does not ask for a judgment”

and it is

“a more neutral formulation than”

the one that the Scottish Government put forward. I think that that is pretty convincing.

Gordon MacDonald

Are you satisfied that the Electoral Commission’s testing was robust and that it stood up to scrutiny?

Michael Russell

It is a bit late for me to be concerned about that, given that it was in 2012—

Gordon MacDonald

I accept that.

Michael Russell

I would have to say yes.

Alex Rowley (Mid Scotland and Fife) (Lab)

Good morning, cabinet secretary. You have said that the question was tested and it was fine and that, if we have another referendum, the same question should apply. Should there be a time period that must elapse before the Government can call another referendum? Even if we forget the independence question, which is the one that you say the bill has been brought forward for, we could end up having referendums every time somebody is not happy, because they might want another one and another one until they get the right answer, and they might keep going with the same question.

Michael Russell

Of course that should be a consideration. Are there circumstances in which referenda should be repeated and are there circumstances in which they should not be repeated? This is not just a conversation that we are having in Scotland; it is one that exists about the Brexit referendum. In these circumstances, we have to look at the political circumstances and where things are. However, that is to some extent a separate matter from the question.

I am arguing that the question is in continued use. It is not the case that it was asked in 2014 and never asked again. As Mr MacDonald said, it has been asked in more than 200 opinion polls, and people understand it. As it has already been approved by the Electoral Commission and it is in current use, I would want to know why it should be tested again in those circumstances. Would that not in itself create confusion?

Alex Rowley

That is a subjective point of view. Is it not important that people have confidence going into a referendum? We are disputing the use of the question that was asked in 2014 because the circumstances have changed significantly since then. As I have said to you before, my view is that it would be wrong for us to go into a referendum before we know the outcome of Brexit. What would we be asking? Would Scotland be an independent state in Europe or an independent state on its own? Arguably, things have changed significantly since 2014, but you just want to stick to the same question.

More importantly in this context, the principle of the bill is that we have to have confidence each time we go into a referendum. Would consideration of any question by independent experts not give us that confidence?

10:30  



Michael Russell

It does. That is why I am happy that the Electoral Commission, when considering the question, said that the question is

“a more neutral formulation”

that

“does not ask for a judgement”

and that it is

“direct”

and

“short and simple”.

Far from being against testing, I am devoted to the principle of testing. However, I am against retesting where a question is current. As I said, if the question had been asked and then forgotten about, of course it would need to be retested. However, this question is current. It has been asked again and again and again.

Far from lacking confidence, I think that those who are challenging the question are, in some cases, attempting to muddy the waters. The question is clear and has passed the test. It is current and continues to be asked. In all those circumstances, it seems strange to argue that in some sense the independence question—because that part of the bill is not just about one question but is about how referenda should be conducted—

Alex Rowley

Exactly.

Michael Russell

The bill says that, in these circumstances, if the question has been approved, that is fine. We might want to say that there should be a time limit on that—I thought that that was what you were about to suggest, Mr Rowley. One might say that the report would expire after a certain period. That is something worth discussing. If the question is still current, I cannot see how you can object to it continuing to be asked. It seems incredible. We would be asking one question in opinion polls all the way through and then suddenly there would be a moment when we were asking another question. How could we have any confidence in the data set in those circumstances?

Alex Rowley

Are we not establishing the principle that each time we have a referendum, whatever the question may be, an independent expert body will test that question?

Michael Russell

The principle is that no referendum should be held without the question having been tested. The question that we are discussing has been tested.

Alex Rowley

That was six years ago.

Michael Russell

The question has been tested.

Patrick Harvie (Glasgow) (Green)

There is clearly a lot of politics in this, but perhaps there is not a huge difference in where we might arrive. Section 3(7) disapplies some of the requirements for consulting the Electoral Commission. You seem to be open to amendments to that and it would be helpful it you should clarify your position. Are you open to amendments to section 3(7) that would change the circumstances in which such consultation is disapplied, in terms of a time limit or expiry date or some other criteria that might give effect to what you said at the beginning, which is that you want testing to happen whenever it is necessary?

Michael Russell

Yes. I am open to discussion of all aspects of the bill. There is a lot of politics clouding things currently. However, it is important that we recognise that the independence question has been tested. Therefore, I am not—as has been represented—against testing; rather I am against retesting a question that is current. Just as I am suggesting that there are different categories of referendum, there may clearly be different categories of question and ways in which they are dealt with.

Patrick Harvie

That would mean that all we are looking for is a definition of what is current.

Michael Russell

I am sure that that can be found.

Murdo Fraser (Mid Scotland and Fife) (Con)

You said at the start of your opening remarks that you wanted the bill to reflect best practice in running referendums. May I quote what the Electoral Commission said in its evidence to the committee? It was very specific and recommended that

“The Bill should be amended to ensure that: the Electoral Commission must be required to assess any referendum question proposed in legislation ... regardless of whether the Commission has previously published views on the question proposed.”

The commission’s view on that is entirely clear. How can what you are saying to the committee possibly reflect best practice, when it goes against the view of the Electoral Commission?

Michael Russell

Well, I disagree with one element of that. Indeed, if you think about it, the way in which the Electoral Commission has phrased its position—if that is an exact quote, and I have no difficulty in accepting that it is—means that you might have a report one day but then change the question the next day and have to retest it. That is just not consistent. It also does not recognise a current question—a question that is still being asked. That is a very important distinction.

Murdo Fraser

With respect, the Electoral Commission does not make such a distinction. It makes very clear in the submission that it provided to us that any question must be tested, regardless of whether the commission has previously expressed an opinion on it. I do not think that there is any dubiety about where the Electoral Commission stands.

Michael Russell

I am entirely clear that testing should happen, but a question that has been tested and continues to be in use is in a different set of circumstances.

Murdo Fraser

Okay. Your position is contrary to that of the Electoral Commission. May I ask one more question, convener?

The Convener

Yes, if it is on the same area.

Murdo Fraser

It is. I think that we all accept that the 2014 referendum was the gold standard of referendums. All parties—the UK Government, the Scottish Government and all the campaign groups—agreed the basic rules and terms of the referendum, such as the timing, the franchise, the spending limits and, crucially, the wording of the question. All those things were agreed, so the outcome had credibility for everyone, regardless of whether people were on the winning side or the losing side.

If we are to have a rerun of the independence referendum—clearly, I do not want that—do you accept that the same level of credibility and agreement will need to be attached to the terms of the referendum, if the outcome is to be respected in the same way?

Michael Russell

I agree that we should endeavour to work towards that. I, in my role as minister in charge of this bill, will endeavour to do that. You, in your role as a member of this committee and a prominent member of the Opposition, will also want to do that.

I am making my position clear, just as you made your position clear in a tweet last week, in which you said:

“Leave/Remain and a Two-thirds majority required. Bring it on”.

Clearly, there is a difference of opinion on the matter, and in those circumstances we will have to agree to differ.

Murdo Fraser

You will have noticed that there was a wink at the end of that tweet. [Laughter.]

Michael Russell

A wink? I am sorry, I do not think that that came across. Of course, you were responding to a tweet from the deputy convener of this committee, but I will not quote him, too.

The Convener

Perhaps you will describe for us what a wink means.

Angela Constance (Almond Valley) (SNP)

I will try to ask a question that does not involve an emoji.

Cabinet secretary, I understand that, under the bill, you would have a duty to consult the Electoral Commission. Will you say what that means in practice? Will you talk about the timing? I assume that you would not send the commission an email on a Monday afternoon in which you were looking for a response by close of play on Friday. Would the discussion or consultation be fairly open? How would all that work?

Michael Russell

It is important to recognise that, in the development of electoral law, there is a close relationship with the Electoral Commission. My officials are sometimes in daily contact with the commission, on a range of issues. We should distinguish between that type of interaction, which is constant and seeks to deal with the minutiae of electoral law in practice—for example, I have an outstanding correspondence with the commission about a matter of electoral law to do with the ordering of candidates on ballots in local authority elections, with which every politician is familiar; such debates take place all the time—and formal consultation, where there is a duty under legislation to consult on a certain issue.

Such formal consultation would be prepared beforehand. There would be a conversation about how the commission wanted to do it and how we wanted to do it. I imagine that we would always publish; I cannot imagine circumstances in which we would not publish the material that went to the commission and the relevant committee and the material that came back.

Some people have argued that the bill should mandate the commission to make certain decisions. Like it or not, politicians are elected to make those decisions, and I see no indication that the commission would want to put itself in such a position. If we request information or views and we publish the information or views that come back, we can have the debate. The views of the commission are not holy writ; there will be differences of opinion about them, and there will be an open debate.

Angela Constance

I appreciate that a formal consultation would be shared, as would the responses.

The commission is an independent body. In your view, what stops it giving you any advice that it wants to give you?

Michael Russell

Absolutely nothing. I meet the commission from time to time. I met Bob Posner when he was in Scotland the time before last and had a lengthy chat with him about issues. That is important.

I have always been a bit of an anorak on electoral matters and I am interested in how they develop; therefore, I am keen to talk to the commission. I have also talked to the boundary commissions. Last year, I attended the annual event at which all the boundary commissions of these islands get together. I am interested in what they do and there is an interchange of ideas. We may or may not come on to details about the fines suggested by the Electoral Commission and digital imprints. We are in an area of emerging activity and that type of dialogue with the commission is, therefore, important, as are the views of the committee.

There may be things that we cannot do in this bill, such as the digital imprints that I mentioned, because it is difficult to see how that can be done. Over the next few years, however, those will emerge as issues for us to deal with. On the issue of fines, the Electoral Commission has indicated that it wants them to be increased massively. The question is how we will respond to that and take it forward.

Angela Constance

Last week, I questioned the commission to understand more about how it protects its impartiality and integrity, particularly given that there are political appointees or representatives on its board. Do you have confidence in the Electoral Commission, cabinet secretary?

Michael Russell

Yes, of course I do. I stress that that does not mean that I accept everything that it says or that it accepts everything that I say. However, it is a good and positive relationship and I have confidence in the commission.

The Convener

Angela Constance also has questions on the referendum period. Do you want to ask those now?

Angela Constance

Thank you, convener. During our evidence sessions, we have heard about the Gould principle. We were reminded last week that its origins grew out of events and the consequences of having two elections on the same day. Do you intend to adhere to the Gould principle, or do you foresee ever having to hold two electoral events on the same day?

Michael Russell

I am a supporter of the principle, having seen at close quarters the difficulties that can be created. Those of us who were at the counts on election night in 2007 will not forget the experience, with difficulties with ballot papers, electronic counting and all sorts of things going on. We recognise how important the principle is. I was a member of the Arbuthnott commission on boundaries and voting systems, which was a very positive experience under John Arbuthnott; it reflected on those issues.

I am broadly of the view that there should not be two—or more—electoral events on the same day. I want to stick to the principle, if at all possible—that is the best situation—but there are sometimes unavoidable circumstances in which it would have to happen. However, I would be very careful about that and I would not want it to happen. People can get shirty about elections imposing on other events. I remember that the Lanimer committee in Lanark was very offended when there was, twice, a UK general election on Lanimer day, which had to be postponed. Elections can be disruptive, but we do not want them to disrupt each other either, because that becomes damaging.

Angela Constance

There is a six-month period to give adequate time for the administrative process and for a proper debate. When should that kick in? Should it be from the passing of the primary or the secondary legislation?

Michael Russell

I am not absolutely committed to six months. That is the gold standard, but there might be circumstances in which that would change. It would probably have to kick in once the regulations were entirely clear, but that is not hard and fast. What is important is that the administrators know what they have to do and are confident that they can do it in the time that they have. It is not just about the administrators; in a referendum, time has to pass so that participants can register and that whole process has to go through.

As I said earlier, the timescales are more to do with the technical ability to deliver than anything else. I am not utterly convinced about the time needed. Somebody argued in previous evidence that people take 10 weeks to absorb political debate. That would be true only if one was starting from scratch. Many people have already absorbed debates that may become referenda.

In these circumstances, it is about the technical ability to deliver, and we must be assured of that. Electoral administrators are very experienced, and sometimes they can do things faster than they think they can.

10:45  



Angela Constance

My final question might be one for the officials. For the record, could somebody summarise which events need to be consecutive and which can be concurrent? Last week, I was reminded that the printing of the ballot papers occurs fairly late in the process.

Michael Russell

There is quite a long list of things that have to happen; I am happy to furnish the committee with the detail. Can we undertake to write to you about that? Is that acceptable? We will inevitably forget something if we give you the list verbally now.

Angela Constance

Can you just be clear about what has to be consecutive and what can be concurrent?

Michael Russell

Yes—we will send you that information.

Angela Constance

Thank you.

Alex Rowley

In respect of referendums and public information, what is the role of Government and of independent bodies in providing information? Sometimes referendums can be complex, and political parties can be strangers to the truth in terms of the information that they put out there. In the European Union referendum, as we know, many people were not aware of just how complex the whole thing was. Is that a problem? How do you overcome that?

Michael Russell

It is. With regard to political parties being strangers to the truth, you are a former general secretary of Labour and I am a former chief executive of the Scottish National Party, and I am sure that we would not admit to that being true. Nonetheless, there are issues about the respective roles of Government, political parties and politicians in an electoral process, and also influencing bodies. One can legislate for that by designating lead bodies and setting out how they would operate. In a referendum in which the Government is making the proposition, it must be entitled to do so—that is why the referendum is taking place—but there must also be arrangements for information about that proposition, and for and against it, to be distributed by others in a way that is effective. I would want to ensure, as the bill does, that the lead organisation and other organisations are well identified.

The Brexit referendum has taught us that we, as citizens, need to be more rigorous and more demanding about the information that we are given. I am not sure how we can legislate for that, but we will need to think about it.

The Convener

I think that John Mason wants to cover expenses, donations and so on.

John Mason (Glasgow Shettleston) (SNP)

Yes, although first I will ask a more general question. We have had quite a lot of discussion so far this morning. There is not just one type of referendum. Until now, we have not held referenda very frequently. Do you still feel that we absolutely need this bill, rather than producing a bespoke piece of legislation each time we have a referendum?

Michael Russell

Yes—I would not be wasting the committee’s and Parliament’s time if I did not believe that.

John Mason

Despite the fact that the legislation will need to be updated.

Michael Russell

We recognise that—it is why section 37 is important. In a sense, there is a weakness of the panoply of electoral law in Scotland and we are remedying that.

John Mason

Thank you. Next, I want to raise a number of points around finances, donations, expenses, fines and that kind of thing. One issue that has come up is the challenge of checking the permissibility of donations. We have separate electoral registers not only across the UK but even within Scotland, and it is not so easy for organisations, especially smaller ones, to check them. Is there any way through that? Can we improve on that situation?

Michael Russell

That is the case, and I suspect that I am going to answer virtually all your questions in the same way. It is a matter of discussion between ourselves and the Electoral Commission. Of course, if there are people with ideas in that area, we will look at those. As you recognise, we have to balance the ability to scrutinise and to enforce electoral law with the need to eliminate undesirable practices.

There is always a balance to be struck. Nobody wants a succession of small donations coming in below the threshold—as we saw in a recent case—which might or might not be designed to subvert the threshold. Equally, we do not want to interfere when a small number of donations are made in a local authority election campaign by concerned citizens who have a problem in their community, so we need proportionate legislation and regulation. The discussion about what is proportionate for such matters will continue. Last week, you asked the commissioner questions about staff salaries—

John Mason

We will come on to that.

Michael Russell

Those are other areas about which we need to be cognisant of concerns, which might be expressed, but we do not want to get to the stage at which it is impossible for people to stand for election or be involved in the electoral process because the level of administration and record keeping is too great for them to bear. We have to be constantly aware of that.

John Mason

That is a fair point. I am aware of that, having been treasurer of a small organisation in the past.

You might have seen last week’s evidence session on the practical difficulties of having a Scotland-wide or UK-wide register. Are you convinced by the arguments that the expense and effort involved would probably not be worth it?

Michael Russell

In the best of all possible worlds, it could be done, but, at the present moment, it would not be easy or speedy to achieve, and it might get in the way of a lot of other things that are happening. It is difficult to overemphasise the pressures that Brexit is causing on every part of the public sector, particularly south of the border. Additionally, we are moving forward with some fairly radical changes to electoral law in Scotland through this bill, the Scottish Elections (Franchise and Representation) Bill and the Scottish Elections (Reform) Bill so, in the circumstances, I do not want to add a further burden.

John Mason

Given that you have already told me that you will answer all my questions in the same way, I guess I know what you will say next. From the Electoral Commission, we heard evidence that it wants more transparency about money that is given earlier on in the process, because currently, information about where it comes from does not have to be disclosed. There is also the question of assets—one organisation might already have a lot of computers at the start of a campaign, while another has not yet bought them—and staff, as you mentioned. Presumably we would not put such things in the legislation, but should we be looking at them?

Michael Russell

Yes. The legislation is the umbrella, then there are lots of regulations and codes of practice. I have talked to the commission about how much we can do in statute to endeavour to drive out bad practice, such as things that happened during the Brexit referendum. There is a proposal for bigger fines and there are many other ideas. Yesterday, there was a case in regard to which the commission expressed some frustration about the powers that are available to it. In all those circumstances, I am open to helping, if we can.

John Mason

We heard evidence from Professor Justin Fisher from Brunel University London. One of his recommendations was that the

“spending limits for registered and non-registered participants should be reduced significantly to ensure that the designated campaigns are paramount”.

There was a question about “permitted participants”, who are allowed to spend £150,000, because it was felt that, if there were a lot of them, that would clash with the overall spending limit. Do you have any thoughts on that?

Michael Russell

Yes. I would like to see less money spent on election campaigning. Mr Rowley and I pioneered the first voluntary restriction on expenditure during the 1999 Scottish Parliament elections. It was an interesting experience and we think that, by and large, parties kept to the voluntary limit. However, things have substantially changed since then. The difficulty with bearing down heavily on the overall spend is that people might seek to spend illegally. We have to recognise where the debate is and, again, try to strike a balance. In general, I am against people endeavouring to buy elections, as we all should be.

John Mason

Following on from that is the question of fines if people break the rules. Until now, £10,000 has been the maximum fine, and the suggested fine is £500,000. I threw in the idea last week that it could be related to the potential benefit that an organisation would get, but that would be difficult. Is £500,000 reasonable?

Michael Russell

Absolutely. The committee will have a view on it but, if the Electoral Commission wants to set a level of £500,000, I am easy about it. You need to be able to indicate to people that the crime that they have committed is against every one of their fellow citizens, and, therefore, there should be an extremely heavy penalty.

Murdo Fraser

I have a question on that specific point—it is exactly same as the question that I asked the Electoral Commission last week. I do not disagree with the need for penalties, but many penalties are applied well after the event. When a referendum is established, campaign groups on each side will raise and spend money. What is the point of hitting a campaign group with a £500,000 fine six months after the outcome of the referendum, when the votes have been counted and the outcome has been accepted, and the group has, in effect, been wound up and has no assets? I understand the concept, but I do not understand how the penalty is a deterrent in practice.

Michael Russell

I saw that you had raised that objection, and I think that it is possible that the situation that you describe could arise. I do not think that a fine would be levied without careful consideration of the case and without convincing proof. Imposition of a fine would be an indication of the seriousness of the crime. I do not think that one would, in other circumstances, refrain from imposing a fine because there was a view that it could not be collected. In such a case, you would impose the fine and then endeavour to collect it or accept that payment of it is outstanding. People perhaps being unable to pay the fine because they have gone off somewhere is not an argument for not imposing the fine. There might be an argument about whether the level of fine is appropriate, although I am comfortable with the level that has been suggested.

Murdo Fraser

I suppose that my question is whether a fine would be a deterrent if it were to be imposed so long after the event that the campaign organisation had been wound up or had no assets with which to pay a fine.

Michael Russell

We have, in recent times, seen people appearing to be contemptuous of such laws, and we have seen other people who take them seriously. I suppose that we should try to show that we take them seriously.

Patrick Harvie

I would like to follow that up briefly. You will be aware that the National Crime Agency has decided to drop further investigations into Leave.EU and Arron Banks. In responding to that, the Electoral Commission said:

“We are concerned about the apparent weakness in the law, highlighted by this investigation outcome, which allows overseas funds into UK politics.”

In such situations, surely the consequence should not be merely a fine for an organisation, but criminal penalties for individuals. That prospect would be a serious deterrent to people accepting impermissible donations or hiding donations that might be impermissible. A change in the law might be needed to remove that loophole.

Michael Russell

I do not think that it is an either/or situation. The Electoral Commission should have the right to fine—it has the right to fine at the moment, and that should continue, perhaps with an increase in the level of the fine.

However, I do not disagree with Patrick Harvie’s point. I am not commenting on a particular case but, I think that when people are found guilty of serious breaches of electoral law—crimes against their fellow citizens that undermine democracy—they should be subject to the full penalty of the law.

Patrick Harvie

Is there scope for the bill to go further in preventing the use of overseas or impermissible donations in Scottish referendums?

Michael Russell

I am not sure—I need to think about that. There are issues around the primary purpose of legislation: I think that that suggestion might lead us into dangerous areas. However, I will consider the issue. I have had conversations in that regard with the Electoral Commission, but about fines rather than criminal action. I am happy to have more conversation with the Electoral Commission about the matter, as we approach stage 2.

Patrick Harvie

Is there a reason in principle why donations from within the UK but outwith Scotland should be regarded as permissible for a Scottish referendum?

Michael Russell

I have the greatest sympathy with the point that you make. Whether Parliament would agree with it, I do not know. There is probably a view among some political parties that donations from all over should be welcome.

John Mason

I want to touch on one other issue, which is public funding for referendum campaigns. Ireland is in a different position—it has to have a referendum every time it wants to change its constitution even a bit. That means that Ireland ends up with referendum campaigns in which there is not a lot of interest on either side, or on one side, so public money is put in to stoke up a bit of debate and get information out to the public. We have not had that experience, but if we were to have referenda on a variety of subjects, we might. Should there always be a bit of public funding available to both sides? If not, are there some circumstances in which that could happen?

11:00  



Michael Russell

I would be reluctant to commit public money to referenda. There is a difference between information activity—which a Government and others might fairly undertake—and public funding of electoral activity. Both are always controversial. Although I would not rule out such funding absolutely, it would require very careful thought.

John Mason

I have a final supplementary question that is based on what the cabinet secretary has said. We got the impression that the electoral commission in Ireland is a little bit more proactive in providing objective information. For example, when the possibility of misinformation came up during one campaign, it was able to make a clear statement that there had not been misinformation. The Electoral Commission here has been a bit more reluctant to provide much detailed information. Do you have a view on that?

Michael Russell

The Electoral Commission is right to be cautious about getting into a situation in which it is the arbiter of truth, because that is not its role. Others might have that role, and it is interesting to see that.

However, we cannot absolutely absolve the citizen of the duty to be a critical observer of arguments that are put, and of what politicians say. That strikes me as being core to our democracy. We probably need to enable and encourage citizens to be more critical observers of the process, and to be more critical of those who are part of the process, in respect of what they say and the arguments that they put forward. I am a bit reluctant to say that we should have a state body that says what the truth is: such things tend not to end well.

Alex Rowley

I have a question on whether Government and Parliament have a duty. I agree that citizens have a duty to try to become informed. However, on complex issues, is there not also a duty for others? Ireland, for example, also considered education programmes. I certainly found in the 2014 referendum that some of the best-informed discussions that I participated in were in schools.

There is also the role of citizens assemblies to consider, which—again—we know from Ireland. Ireland had a referendum on what was a very difficult issue that I thought would cause a lot more problems, and people there have said that citizens assemblies certainly played a part in ensuring that there was a well-conducted and well-mannered referendum, and that people were informed. Is there a role for citizens assemblies?

Michael Russell

Yes, absolutely. Citizens assemblies are a very good example, and I am glad that we have started down that road. There are also roles for other bodies and organisations that can get involved.

We are living in a dangerous era of, sometimes, post-truth politics and, sometimes, anti-truth politics. What happened in the Supreme Court yesterday will, perhaps, result in a reversal of that tide: there is slow realisation that we require openness and honesty in politics and in public life. Maybe the situation will now change for the better and maybe we will be able to push it that way. If things were to continue as they have been going, I would be very fearful.

There is also a duty on us, as politicians, to stand up in such circumstances, and to have high standards against which to judge ourselves, what we say and how we present our arguments.

A citizens assembly can help with that. When I was talking to people in Ireland who were involved with the one on abortion, I was struck by how they felt. I was told that the advocacy organisations that were required to come and talk to the citizens assembly were allowed—I think—five sides of A4 on which to put their case. That was fact-checked, so they could not just assert things. We politicians assert, quite often. However, those organisations’ cases were fact-checked, and they were not allowed to be put to the citizens assembly if they were not provable and true. If we could have such a situation, we would be a lot better off.

Alex Rowley

Is there a role for Government to support financially such initiatives? That is what I am trying to get to.

Michael Russell

Yes. We are, of course, supporting the citizens assembly. If there are other such initiatives, maybe we should talk about them. I am absolutely open to seeing how that could be done. However, I am also saying that citizens and individual politicians have roles, and that we should take those roles upon ourselves.

The Convener

Gordon MacDonald has questions about the purdah period.

Gordon MacDonald

The bill restricts publication of promotional material by the Government and public authorities in the final 28 days of any referendum in the same way as the UK PPERA of 2000. The Electoral Commission suggests in its written evidence that the purdah period should be extended to cover the full referendum period, with the restriction being applied to a narrower range of material. Is there a need for a change to the purdah period? How do you see that working in practice? What impact would it have on the day-to-day business of the Scottish Government and the Parliament if the referendum period was six months, a year or whatever?

Michael Russell

The purdah period should not be extended lightly or ill-advisedly. The restriction is in order to ensure that the Government does not seek to influence the outcome unduly. That is particularly relevant during election periods, when the Government might be tempted to use pork-barrel politics of various types in order to influence the vote.

A single-issue referendum is different in that regard. It is appropriate that the Government would have some form of stay put on it, but an extended period would disrupt normal business. In a purdah period, ministers do not make announcements, various issues cannot be dealt with and civil servants are not allowed to do certain things, so I would be resistant to anything longer than the 28-day period. That would need to be interpreted carefully; Government could not take action that would influence people on the subject. However, the Government should be free to continue to act in a wide range of other areas: a referendum is not the same as an election.

Gordon MacDonald

If there was a referendum that both the Scottish and UK Governments had an interest in, the difficulty—as we heard in previous evidence—is that the change to the purdah period under Scots law would not bind the hands of the UK Government. In the 2011 referendum in Wales, the Electoral Commission asked both the Welsh and UK Governments to extend the purdah period. Wales agreed but the UK Government did not. What impact could that uneven playing field have on any referendum campaign?

Michael Russell

Concerns have been expressed recently that there might be a desire on the part of the current UK Government to eat into any purdah period and to treat it less seriously, so I am cautious about the issue.

In order to make an agreement between the Governments of these islands stick, we need to trust each other. It is no secret that that trust has evaporated—it does not exist. At present, I would have no confidence that such an agreement could be operated effectively. If there was a more trusting relationship, if the intergovernmental review had come to a conclusion and if there were enforceable checks and balances, that might be possible.

The Convener

Patrick Harvie has questions about online publications.

Patrick Harvie

The section in the bill on publications not by Governments but by anybody else—campaigners, campaign bodies, political parties and members of the public—clearly sets out that the requirement for information about the origin of the publications covers not only printed materials, including newspaper adverts, but other forms of publication. “Publish” is defined as

“make available to the public at large, or any section of the public, in whatever form and by whatever means”.

Clearly, that includes online publications. How extensive is that provision? It seems to me that, as it stands, it would cover social media posts, for example.

Michael Russell

I think that the provision should include online publications. The great difficulty is how to construct the requirement such that it is effective and can be enforced. It is fair to say that all the evidence that the committee has received on the matter expresses the same view, which is that we are at a point at which it is highly desirable for electronic means of communication to be subject to the same restrictions as print material. The purpose is to identify who is saying what and who is publishing what. That is hard to do with electronic publication. It is even harder than dealing with anonymous posters, flyers or leaflets, which are comparatively uncommon. Electronic publication is easy to do and difficult to trace.

We continue to discuss the matter with the Electoral Commission, among others. I would like to find a way to couch the provisions and make them effective. I said earlier that I think that that will come—although on the question whether it comes in time to be included in the bill, or will be dealt with as part of the section 37 process, I think that the latter is more likely.

Patrick Harvie

Is it the Government’s intention, in how it has drafted the bill, that social media posts by an individual that do not include a digital imprint will be regulated in the same way as a lamp-post poster, which does not include an imprint?

Michael Russell

Broadly, yes. I say “broadly” because there are differences in how we would regulate and how we might be effective in regulating them. However, the principle is the important thing: people who are intervening in elections should be identifiable. Anonymous leaflets exist and sometimes the sender can never be found. Equally, anonymous online posts exist and it is even harder to find the person behind them. In a democracy, the principle should be that the people who are taking part in an election should be identifiable.

Penny Curtis (Scottish Government)

I will clarify. We are trying to make sure that we do not capture individuals expressing their personal views. The bill is very much about capturing publications that are intended for campaigning. The difficulties are in determining the margin between the two—how we make judgments around that and how we legislate for it. We acknowledge that doing so is very hard, as was reflected in a lot of evidence, and that things will evolve over time.

Michael Russell

That is a very important distinction that is harder to draw in respect of physical campaigning than it is in respect of electronic campaigning.

Patrick Harvie

Let us take the issue away from independence and instead use the example that you mentioned earlier of a referendum on assisted dying. If an individual publishes on social media that they are concerned about a particular aspect of the issue, or have a reason why such concerns do not apply to them and they want to exercise the right to assisted death, would that be fine? If they were to publish an image that included a message saying, “Vote yes” or “Vote no”, would that be campaigning and therefore be covered by the bill?

Michael Russell

You have presented the difficulty. Would that be campaigning? That will need to be decided.

Patrick Harvie

Under the terms of the bill, such an image would clearly be designed to encourage a result in the referendum.

Michael Russell

I am not sure that it would. We have to understand the language of social media. That becomes the issue. If somebody produces a graphic image that says, “Vote no”, is that a personal expression or is it a campaign? That is the issue: it is difficult to say. If a person published an anonymous series of personal remarks about another campaigner, would that be actionable, and would it constitute campaigning against them? Those issues need to be examined. It is genuinely difficult to know at the moment.

Patrick Harvie

Do you intend to lodge amendments on that, because the bill does seem to be ambiguous?

Michael Russell

I think that, inevitably, we will.

The Convener

That was a very interesting exchange. There are issues about freedom of speech and democratic engagement. If we are not careful, we might begin to curtail them.

Michael Russell

That is absolutely not the intention, so we must be very careful. Everybody knows that there needs to be some form of traceability of people who campaign—that is the purpose of the digital imprint. However, doing that in the 21st century is difficult.

The Convener

Nobody else has questions, so I thank the cabinet secretary for his evidence. It has been an informative and useful session. I also thank committee members for going about the process in a good tone and in the right spirit. The committee will reflect on the evidence that we have heard, and consider our stage 1 report.

Meeting closed at 11:14.  



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26 June 2019

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4 September 2019

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11 September 2019

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18 September 2019

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25 September 2019

Finance and Constitution Committee Stage 1 report 

Delegated Powers and Law Reform committee

This committee looks at the powers of this Bill to allow the Scottish Government or others to create 'secondary legislation' or regulations.

It met to discuss the Bill in public on:

10 September 2019

19 November 2019

Debate on the Bill

A debate for MSPs to discuss what the Bill aims to do and how it'll do it.

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Stage 1 debate on the Bill transcript

The Presiding Officer (Ken Macintosh)

The next item of business is a debate on motion S5M-19743, in the name of Michael Russell, on the Referendums (Scotland) Bill at stage 1.

14:21  



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.

14:35  



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.

14:45  



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.

14:54  



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.

15:05  



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.

15:12  



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.

15:18  



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.

15:25  



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.

15:31  



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.

15:36  



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.

15:43  



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.

15:50  



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.

15:57  



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.

16:03  



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.

16:09  



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.

16:16  



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.

16:23  



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.

16:30  



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.

16:36  



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.

16:42  



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.

16:50  



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.

Financial resolution

A financial resolution is needed for Bills that may have a large impact on the 'public purse'.

MSPs must agree to this for the bill to proceed.

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Financial resolution transcript

The Presiding Officer (Ken Macintosh)

The next item of business is consideration of motion S5M-195399, in the name of Derek Mackay, on a financial resolution for the Referendums (Scotland) Bill.

Motion moved,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Referendums (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.—[Derek Mackay]

Vote at Stage 1

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Vote at Stage 1 transcript

The Presiding Officer (Ken Macintosh)

There are two questions to be put as a result of today’s business.

The first question is, that motion S5M-19743, in the name of Michael Russell, on stage 1 of the Referendums (Scotland) Bill, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Yousaf, Humza (Glasgow Pollok) (SNP)
Wightman, Andy (Lothian) (Green)
Wheelhouse, Paul (South Scotland) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Swinney, John (Perthshire North) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Robison, Shona (Dundee City East) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lochhead, Richard (Moray) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Johnstone, Alison (Lothian) (Green)
Hyslop, Fiona (Linlithgow) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Greer, Ross (West Scotland) (Green)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Finnie, John (Highlands and Islands) (Green)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

Against

Wishart, Beatrice (Shetland Islands) (LD)
Whittle, Brian (South Scotland) (Con)
Wells, Annie (Glasgow) (Con)
Tomkins, Adam (Glasgow) (Con)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smith, Elaine (Central Scotland) (Lab)
Simpson, Graham (Central Scotland) (Con)
Sarwar, Anas (Glasgow) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
McNeill, Pauline (Glasgow) (Lab)
McArthur, Liam (Orkney Islands) (LD)
Mason, Tom (North East Scotland) (Con)
Marra, Jenny (North East Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lindhurst, Gordon (Lothian) (Con)
Leonard, Richard (Central Scotland) (Lab)
Lamont, Johann (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Kelly, James (Glasgow) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Harris, Alison (Central Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Griffin, Mark (Central Scotland) (Lab)
Greene, Jamie (West Scotland) (Con)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Golden, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Findlay, Neil (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Davidson, Ruth (Edinburgh Central) (Con)
Corry, Maurice (West Scotland) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Carson, Finlay (Galloway and West Dumfries) (Con)
Carlaw, Jackson (Eastwood) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Briggs, Miles (Lothian) (Con)
Boyack, Sarah (Lothian) (Lab)
Bowman, Bill (North East Scotland) (Con)
Bibby, Neil (West Scotland) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)

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

Yousaf, Humza (Glasgow Pollok) (SNP)
Wightman, Andy (Lothian) (Green)
Wheelhouse, Paul (South Scotland) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Swinney, John (Perthshire North) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Robison, Shona (Dundee City East) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lochhead, Richard (Moray) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Johnstone, Alison (Lothian) (Green)
Hyslop, Fiona (Linlithgow) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Greer, Ross (West Scotland) (Green)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Finnie, John (Highlands and Islands) (Green)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

Against

Wishart, Beatrice (Shetland Islands) (LD)
Whittle, Brian (South Scotland) (Con)
Wells, Annie (Glasgow) (Con)
Tomkins, Adam (Glasgow) (Con)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smith, Elaine (Central Scotland) (Lab)
Simpson, Graham (Central Scotland) (Con)
Sarwar, Anas (Glasgow) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
McNeill, Pauline (Glasgow) (Lab)
McArthur, Liam (Orkney Islands) (LD)
Mason, Tom (North East Scotland) (Con)
Marra, Jenny (North East Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lindhurst, Gordon (Lothian) (Con)
Leonard, Richard (Central Scotland) (Lab)
Lamont, Johann (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Kelly, James (Glasgow) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Harris, Alison (Central Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Griffin, Mark (Central Scotland) (Lab)
Greene, Jamie (West Scotland) (Con)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Golden, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Findlay, Neil (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Davidson, Ruth (Edinburgh Central) (Con)
Corry, Maurice (West Scotland) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Carson, Finlay (Galloway and West Dumfries) (Con)
Carlaw, Jackson (Eastwood) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Briggs, Miles (Lothian) (Con)
Boyack, Sarah (Lothian) (Lab)
Bowman, Bill (North East Scotland) (Con)
Bibby, Neil (West Scotland) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)

The Presiding Officer

The result of the division is: For 65, Against 55, Abstentions 0.

Motion agreed to,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Referendums (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.

Meeting closed at 17:02.  



MSPs agreed that this Bill could continue

Stage 2 - Changes to detail 

MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.

Changes to the Bill

MSPs can propose changes to a Bill  these are called 'amendments'. The changes are considered then voted on by the lead committee.

The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.

The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.

How is it decided whether the changes go into the Bill?

When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.

The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.

Depending on the number of amendments, this can be done during one or more meetings.

First meeting on amendments

Documents with the amendments considered at this meeting held on 27 November 2019:

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First meeting on amendments transcript

The Convener (Bruce Crawford)

Good morning and welcome to the 27th meeting in 2019 of the Finance and Constitution Committee. I remind members to switch off their mobiles, or at least to put them on silent, so that they do not disturb the proceedings.

Agenda item 1, which is the only business on today’s agenda, is to deal with stage 2 of the Referendums (Scotland) Bill. I welcome to the meeting Michael Russell, the Cabinet Secretary for Government Business and Constitutional Relations, and his officials. I also welcome non-members of the committee to the meeting.

Members will be aware that we have a considerable number of groupings to consider and amendments to get through. I am mindful of the need to ensure that there is sufficient time to allow consideration of all the amendments, including those in the later groupings. Therefore, I ask members and the cabinet secretary to keep their contributions as concise as possible.

Section 1—Power to provide for referendums

The Convener

Amendment 76, in the name of Adam Tomkins, is grouped with amendments 77, 1 to 3, 78, 18, 23, 29, 42, 49 and 61.

Adam Tomkins (Glasgow) (Con)

Good morning, everyone. The first group of amendments concerns the power in section 1 of the bill to provide for referendums. Section 1 as drafted is extraordinary, because it allows for referendums to be called either by the authority of an act of this Parliament, which would be by primary legislation, or by ministerial order or regulation, which would be by secondary legislation.

There is no equivalent power in the Political Parties, Elections and Referendums Act 2000, which is the United Kingdom’s referendums legislation. The stage 1 evidence that the committee took from Dr Alan Renwick of the constitution unit at University College London was that there is no well-functioning parliamentary democracy that gives ministers blanket authority to call a referendum by secondary legislation.

The committee unanimously recommended that section 1 be amended so that at least constitutional referendums must require primary legislation and that all other referendums ordinarily require primary legislation.

I will speak not only to amendment 76, which is the lead amendment in this group, but principally to amendment 1.

Amendment 1 omits section 1 from the bill, replacing it with a provision that would mean that any referendum to which this legislation applies would need to be triggered by an act of the Scottish Parliament. I note that the cabinet secretary now supports that amendment, which I very much welcome.

Amendment 1 would mean that the bill would be identical to the equivalent UK legislation, PPERA, in that any referendum held on a devolved matter in Scotland to which this legislation applies would require an act of the Scottish Parliament to establish it. That is the clearest and simplest solution to the problem that section 1 as introduced poses. As I said, I very much welcome the Scottish Government’s apparent support for it.

Amendments 76 and 77 are alternatives to amendment 1, in the event that the committee does not accept amendment 1.

Amendment 76 would mean that any referendum on a constitutional matter would require an act of the Scottish Parliament. Amendment 77 would mean that any referendum on a moral issue would also require an act of the Scottish Parliament. In other words, no constitutional referendum and no referendum on a moral issue could be called by ministerial order or regulation.

I do not intend to move those amendments, if committee members indicate that amendment 1 is likely to be accepted. Amendments 76 and 77 are lesser alternatives to amendment 1, and are not designed to be moved in addition to amendment 1 if that amendment is agreed to.

I briefly turn to the other amendments in the group, which are all consequential on amendment 1. Amendments 2 and 3 are rival amendments to section 2. The cabinet secretary proposes to leave out section 2 entirely. I think that the understanding—he will be able to speak for himself in a moment, so he will correct me if I am wrong—is that section 2 becomes unnecessary or otiose if amendment 1 is accepted. I would happily support amendment 3.

My amendment to section 2 simply omits from it the provision that would enable regulations under the provision to modify any enactment. The committee took evidence from the Law Society of Scotland that that aspect of section 2 as introduced is too broad and gives ministers too much power to amend primary legislation by secondary legislation, which is always something that we should be alive to. Again, however, I will not move amendment 2 if it is clear that the cabinet secretary will move amendment 3 and the committee will support it. I prefer amendment 3, which leaves out the entirety of section 2, to amendment 2, which leaves out only three words of it.

As I said, all the other amendments in the group are consequential on amendment 1. Except for amendment 78, which is in my name, they are all in the name of the cabinet secretary. We will support his amendments. Amendment 78 is on one further aspect of the bill that requires to be amended in the event that the ministerial power to trigger referendums by regulations is removed from section 1. It simply omits the words “(including this Act)” from section 3(1)(a). That means that the provisions in section 3 on referendum questions would apply where

“provision is made by or under an Act of the Scottish Parliament for the holding of a referendum”.

We do not need the words “(including this Act)” in that sentence, because no referendum is to be held under this legislation. The bill does not contain provision for the holding of any referendums, so those words are not needed. The section would be neater, cleaner and more accurate if we were simply to omit those words; that is the force of amendment 78.

I repeat that we would be happy to support all the other amendments in this group in the name of the cabinet secretary.

I move amendment 76.

The Cabinet Secretary for Government Business and Constitutional Relations (Michael Russell)

It is always my approach to a bill—members of the committee know this, because we have been in this position before—to seek to enhance it and to reach agreement on issues that have been raised in the committee report. That has lain behind all the approaches that I have taken to amendments today, as I hope will become clear.

I hope that, at the end of stage 2, we can have a clear agreement on the bill and—irrespective of whether people want to support or oppose it—it is clear that we have sorted out the issues that have been raised at stage 1.

I still believe that this bill offers a different approach to arranging referendums, and elements of it will survive this process. It provides a framework on to which the specific arrangements for referenda would be bolted, which is different from the PPERA approach.

Some committee members prefer the PPERA approach, so I am trying to find a way to ensure that the objections that were raised at stage 1, in evidence and by the committee, can be addressed. That is the background to where I find myself this morning.

The committee heard evidence on whether referendums should be triggered by primary or secondary legislation and on the circumstances under which those approaches would be appropriate. Your stage 1 report recommended

“that the Bill be amended so that referendums on constitutional issues must require primary legislation and that all other referendums will ordinarily require primary legislation.”

It further recommended that, if the Government wished

“to identify specific criteria for other referendums”,

we should provide for that.

As I set out in the stage 1 debate, I have accepted the argument that most referendums should be triggered by primary legislation. I have gone on to consider whether there are circumstances in which a referendum could be provided for by secondary legislation, subject to some form of super-affirmative procedure. I provided evidence to the committee when I spoke to and was questioned by it on these matters. Those circumstances apply in New Zealand, for example. Having taken account of the evidence and of the view of the committee, however, I have come to the conclusion that it would be best not to stand upon that issue, and to find a way to address the objections of the committee.

Adam Tomkins has lodged amendment 1, which would produce the effect of ensuring that all referendums are undertaken by primary legislation. I intended to lodge my own amendment to make the same change, but I was slightly tardy in that matter, so I have put my name to Mr Tomkins’s amendment, I support it and I would encourage the committee to support it.

Mr Tomkins has indicated that amendments 76 and 77 are alternatives to that approach. As I have accepted amendment 1, which is a better approach, I do not think that there is any need to proceed with amendments 76 and 77, and I am grateful to Mr Tomkins for having made that clear in what he has said. Those two amendments do not address the recommendation of the Delegated Powers and Law Reform Committee that the procedure for secondary legislation should be adjusted, so I think that we should simply park those and accept that amendment 1 represents the right way to do things.

I have lodged consequential amendments 23, 29, 42, 49 and 61, which make the necessary consequential adjustments to the bill to accommodate the changes to section 1. Those amendments would essentially provide the full job, if added to section 1.

Mr Tomkins referred to amendment 78 as a change to section 3 as a consequence of amendment 1. I support that amendment and encourage committee members to do so. In addition, Mr Tomkins lodged amendment 2 to make changes to section 2, removing the power to amend enactments. I have been more radical than Mr Tomkins in this matter: amendment 3 in my name would remove section 2 altogether. If section 1 provides for a bill in all cases, any necessary adjustments to the provisions in the framework could be made in a subsequent bill, as is common. That is a more straightforward approach than would apply under section 2.

Amendment 18 removes what would be a superfluous reference to section 2 if amendment 3 is accepted.

Patrick Harvie (Glasgow) (Green)

We have debated the question of whether specific legislation should always be required for referendums in the future, and I was willing, with an open mind, to allow the cabinet secretary to come back to us if he wanted to set out criteria that would allow for secondary legislation to be adequate. I was never really convinced that the need was there.

It seems to me that we could have a referendum on an issue that was so big that it transcended the parliamentary process, or on so contentious an issue that it would not be appropriate for Parliament to deal with it. It has always struck me as difficult to envisage a situation where an issue would meet those tests and yet be so simple that it did not require the detailed scrutiny that full legislation would offer.

I am glad that a compromise or agreement has been reached and that the cabinet secretary has agreed that the change can be made. Even if that was not the case, I would not be agreeing to amendments 76 or 77 from Adam Tomkins, if they were moved. If a minor matter was constitutional, I would not see that as being particularly key to the test of whether primary legislation was necessary.

As for moral issues, as we have discussed at the committee previously, I do not see it as being easily possible to have a clear definition of what constitutes a “moral issue”. All too often in politics, we regard things as moral issues when they affect marginalised people, rather than examining the moral content of the arguments.

Women’s reproductive rights are often seen as moral issues; men’s reproductive rights never are. Family law for people in same-sex relationships is often seen as a moral issue; family law for people in mixed-sex relationships never is. I will not agree to amendment 77 on a point of principle; legislation that would separate out what are seen as moral issues in politics from what are not seen as moral issues would be a fundamental mistake.

09:15  



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.

09:30  



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.

09:45  



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

Tomkins, Adam (Glasgow) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Harvie, Patrick (Glasgow) (Green)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Arthur, Tom (Renfrewshire South) (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

MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Harvie, Patrick (Glasgow) (Green)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Arthur, Tom (Renfrewshire South) (SNP) Mason, John (Glasgow Shettleston) (SNP)

Against

Tomkins, Adam (Glasgow) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

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

MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Harvie, Patrick (Glasgow) (Green)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Arthur, Tom (Renfrewshire South) (SNP) Mason, John (Glasgow Shettleston) (SNP)

Against

Tomkins, Adam (Glasgow) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

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

MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Harvie, Patrick (Glasgow) (Green)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Arthur, Tom (Renfrewshire South) (SNP) Mason, John (Glasgow Shettleston) (SNP)

Against

Tomkins, Adam (Glasgow) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 92 agreed to.

The Convener

The question is, that section 3, as amended, be agreed to. Are we agreed?

Members: No.

The Convener

Conservative members’ opposition is noted.

Section 3, as amended, agreed to.

After section 3

The Convener

Amendment 4, in the name of Adam Tomkins, is grouped with amendments 4A and 75.

Adam Tomkins

On page 11 of the Electoral Commission’s September 2016 report on the 2016 EU referendum, recommendation 3 states:

“the starting assumption for Governments and legislatures should be that referendums are”—

I am sorry, convener, but I am looking at the wrong section. I should be speaking to amendment 4 on the minimum regulated period.

The Convener

That is correct. It is okay—take your time.

Adam Tomkins

Right, let me start that again.

I do not think that the cabinet secretary and I are going to disagree on this issue because the force of my amendment 4 and the force of his amendment 75 are broadly similar and are two different means of achieving the same ends. The bill should be amended in one way or another to ensure that the minimum regulated period for any referendum that is held under the authority of the legislation is 10 weeks.

As introduced, the bill had no minimum regulated period. The committee took evidence that there should be a minimum period and that best practice appeared to be that a minimum of 10 weeks should be adopted. I am happy to be corrected but, as I understand it, the force of amendment 75 and the force of amendment 4 are two different legislative means of seeking the same result. I am not going to die in a ditch over whether the means in amendment 4 or the means in amendment 75 should be adopted. Amendment 75, which simply defines a referendum period in the schedule of definitions is probably more elegant and neater than the alternative, so I would be happy not to press amendment 4 if the cabinet secretary wishes to move amendment 75, unless he thinks that there is some material difference between the amendments that I have overlooked in my sleepiness.

Jackie Baillie has lodged an amendment to my amendment that would make the minimum regulated period 12 weeks rather than 10. The selection of any period of time is, I suppose, arbitrary, but my question for Jackie Baillie is why it should be 12 weeks when the evidence that the committee took was that 10 weeks is the minimum that is required. There was no discussion of a 12-week period during our evidence taking but there was quite a lot of discussion of a 10-week period. There are recent unfortunate exceptions to this but, by and large, this committee seeks to follow the evidence, and the evidence is that the minimum regulated period should be 10 weeks, so I would stick with that and not extend to 12 weeks. Again, that is not a ditch in which I propose to die.

I move amendment 4.

Jackie Baillie (Dumbarton) (Lab)

Let me add to the outbreak of consensus, because there is broad support for the principle that the length of the regulated referendum period should be set out in the bill. I am, however, conscious that, if Adam Tomkins withdraws amendment 4, amendment 4A has nothing on which to hook itself, so I am slightly disappointed that he is prepared to cave for the cabinet secretary’s form of words when his is clearly far superior.

That said, I was challenged to say why I am seeking a period of 12 weeks. In previous debates on amendments, Adam Tomkins has said that these are momentous decisions that could be taken in future referenda. Notwithstanding the evidence that the committee took from expert witnesses about what goes on elsewhere, we have now had experience of two referenda in a short period of time. Because of the significance of the decisions, a minimum period at 10 weeks is perhaps slightly too short a time. I would rather err on the side of caution and give the maximum possible time for such a debate, as well as allowing for the normal functioning of local government and the Scottish Government.

John Mason

Will the member take an intervention?

Jackie Baillie

I am just about to finish, but please go ahead, Mr Mason.

John Mason

I am still not clear why it should be 12 weeks rather than, say, 14, 16 or 20.

Jackie Baillie

I think that 12 weeks is better than 10. I have said that I base that on the experience that we have had of two referenda. We need to allow a minimum period with sufficient time for the democratic process to be thorough, so 10 weeks is just a bit too short.

I move amendment 4A.

Michael Russell

I simply confirm that I believe that 10 weeks is correct. The committee welcomed the Scottish Government’s openness to considering a minimum regulated period when it reported. The 10-week period was the view of stakeholders, and it seemed to be an appropriate period. Therefore, I think that 10 is the right number. There is no great harm in 12—and I think that Jackie Baillie has lodged an amendment that would provide for a 14-week period in other circumstances; the number keeps growing. Stakeholder opinion on 10 weeks was unanimous, as far as I recall.

It would be for the Parliament to decide on a longer or shorter referendum period for a particular referendum if referendums were being held under primary legislation. However, the framework position—and I go back to the point that this is a framework bill—would be what is supported.

10:00  



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.

10:15  



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

Rowley, Alex (Mid Scotland and Fife) (Lab)
Bibby, Neil (West Scotland) (Lab)

Against

MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Harvie, Patrick (Glasgow) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Arthur, Tom (Renfrewshire South) (SNP) Tomkins, Adam (Glasgow) (Con)
Mason, John (Glasgow Shettleston) (SNP)

The Convener

The result of the division is: For 2, Against 9, Abstentions 0.

Amendment 93 disagreed to.

The Convener

Amendment 94, in the name of Neil Findlay, is grouped with amendment 95. I understand that Alex Rowley will speak to and move amendment 94.

Alex Rowley

Convener, Neil Findlay sends his apologies for being unable to attend the meeting.

Amendment 94 would create a category of referendum, the citizen initiative referendum, which could be initiated from below, in an attempt to bridge the democratic gap.

For many ordinary people, the Scottish Parliament has for much of its existence seemed cut off from the concerns of their daily lives. It is important that we address that. By complementing the on-going work of the petitions system, we can help to reverse the trend towards a little more than 45 per cent of the population exercising their democratic right.

The threshold for initiating a citizen initiative referendum would be 300,000 signatures. That is a substantial threshold, but we are unapologetic about that; any issue that leads to a referendum, with all the time and expense that that involves, must be important to a large number of Scottish people. Even if the 300,000-signatures threshold is not met, we expect there to be an increase in democratic participation as citizens come together to campaign on causes that matter to them. The Scottish Government has consistently said that it embraces such participation.

We appreciate that there might be concerns about such a novel proposal but we want to revitalise our democracy and bold steps are needed if we are to do so.

I move amendment 94.

Jackie Baillie

Amendment 95 builds on amendment 94, which sets out arrangements for a citizen initiative referendum—a novel approach, which is designed to bridge the democratic deficit. I have sought to provide an appropriate timescale for such a referendum, which is a minimum regulated period of 14 weeks.

On balance, I think that more time would be needed for such a referendum than would be needed for a Government-initiated referendum. There would need to be sufficient time for a proposition to be well understood and for proposals to be properly scrutinised and discussed. Hence my choice of 14 weeks.

Patrick Harvie

I am pleased that we have the opportunity to discuss amendment 94.

I certainly would not want to be thought of as being hostile to the idea of citizen initiative referendums. Greens have always argued that representative democracy is part of our democratic process and should be augmented and added to by participative and deliberative processes. For that reason, we championed participatory budgeting. We also championed a public petitions systems when Parliament was being established, and we urged councils around the country to adopt public petitions systems—I think that most have now done so. We are pleased that there is now an approach to the use of citizens assemblies at local and national level. The citizens assembly of Scotland is currently considering broad constitutional questions and later there will be a citizens assembly on climate.

All those things are innovations that I welcome. However, I suspect that we are not quite ready for amendment 94. I would very much welcome the view of the current citizens assembly on whether a citizens initiative should be able to trigger a referendum. It would be more appropriate to hear the views of citizens assembly participants on whether such an approach would be a positive innovation, in the context of participative and deliberative processes, than it would be for the committee to decide that now.

In the absence of clear evidence on the issue being taken at stage 1 of the bill, it would be premature for us to make a decision on it. However, I would very much welcome a debate on the question, whether at stage 3 or through the citizens assembly, if that body wants to consider a proposal along the lines that are set out in amendment 94.

On amendment 95, I am not convinced that there is a case for extending the minimum regulated period in the way that Jackie Baillie suggests, but it will not be relevant if the committee does not support amendment 94.

Adam Tomkins

I agree with quite a lot of what Patrick Harvie said. A missed opportunity in the bill, so far, has been that we have not thought carefully or deeply about the relationship between democracy by referendum, parliamentary democracy and other citizen initiatives, including citizens assemblies. It is unfortunate that the bill has not given us the opportunity to think through some of those issues a little more carefully and deeply.

Amendment 94 is bonkers. It is a really strange and extremely dangerous amendment, which is fantastically ill conceived. For example, it says:

“A referendum held under this section is advisory”,

as if other referendums might somehow be different, without explaining what “advisory” means. It also gets wholly wrong the role of the Electoral Commission, which we have debated this morning. It says:

“It is for the Electoral Commission to specify the wording of the question or questions in a referendum held under this section.”

We have already seen that that is not what the Electoral Commission is for; the Electoral Commission’s role is to give advice about the intelligibility of referendum questions, not to specify or bind.

The fundamental flaw in amendment 94 is that it would lock Scotland into an independence neverendum. It is unfortunate, but I am happy to concede that there will always be 300,000 people in Scotland who think that Scotland should be an independent country—although many more will take the correct view. [Laughter.] The proposed approach in amendment 94 would enable 300,000 cybernats—or 300,000 nationalist campaigners—to petition the Electoral Commission for an independence referendum, and the amendment provides that once that number of signatures has been obtained,

“a referendum is to be held.”

We would have a permanent independence referendum under amendment 94, which was moved by Alex Rowley but lodged in the name of Jeremy Corbyn’s left-hand man in Scotland, Neil Findlay, and which shows how weak the Labour Party is when it comes to protecting the union.

Amendment 94 is a Labour amendment that would lock Scotland into a permanent independence neverendum. For that reason, as well as its manifest inadequacies in the detail of its inelegant drafting, we will oppose it.

Michael Russell

I oppose amendment 94, but not for the reason that Mr Tomkins has just outlined. I am not an extremist in any sense; I do not veer between the extremes of wanting a perpetual referendum and the position of the acting leader of the Scottish Tories, Jackson Carlaw—I am not sure that he is acting the role very well—who apparently said this week that there should not be another referendum until 2054, when I will be 101. There will be seven Scottish Parliament elections between now and then. That is clearly a ludicrous proposition.

Adam Tomkins

I agree—it is too soon. [Laughter.]

Michael Russell

I hope that the Official Report has captured Mr Tomkins’s belief that a referendum in 2054 would be too soon. That says something about democracy.

I would not use the word “inelegant” to describe amendment 94. It has simply not been thought through—it is threadbare. It would allow any voter to initiate a referendum by starting a petition that goes on to collect 300,000 signatures. Why has the figure of 300,000 been chosen? The Scottish people are well known for their sense of humour. I note that Boaty McBoatface received 124,109 votes. With the low threshold that has been proposed, it is clear that the mechanism proposed by amendment 94 could be used for a variety of purposes.

The amendment lacks any detail on who would be entitled to add their signature to such a petition. Would that ability apply only to those who were over 16 or 18, or would people of any age have it? Would they have to be resident in Scotland, or could anyone in the world add their name to the petition?

On top of that, there is the issue of whether, given what the Electoral Commission is for, it would wish to take on the roles that are specified in amendment 94. No consideration is given to the matters of the accuracy of the signatures or the eligibility of people to sign such a petition. The amendment is completely threadbare and absolutely out of place.

Amendment 94 also fails to recognise that, if an individual citizen wants to use a petition to initiate a referendum, a route to do so already exists. I have some sympathy with Mr Harvie’s position—that route could be improved on. I am not absolutely against initiative referenda. People can petition the Scottish Parliament and, if they collect sufficient signatures, action can be, and is, taken. The petitions system allows individuals to directly affect Government policy. I cite as evidence of that Gillian Martin’s Seat Belts on School Transport (Scotland) Bill, which she introduced in February 2017 and which received royal assent in December of that year; it was directly related to the petitions process. There is a way for an individual to try to change Government policy through existing procedures. Can it be improved? Of course. Would amendment 94 improve it? Absolutely not.

If amendment 94 is a serious amendment, it should not have been lodged in the terms in which it has been lodged. On top of the practical defects that I have outlined, there is also the question of who would pay for such a referendum, how the Parliament would react and what the limits of the process would be. I agree that there should be a debate on the subject, but accepting amendment 94 is not the way to have that debate, and I urge the committee to reject it.

The Convener

I invite Alex Rowley to wind up on amendment 94.

Alex Rowley

Neil Findlay will be disappointed that he was not able to engage in today’s discussion. Amendment 94 is more of a probing amendment that was lodged in an attempt to widen the discussion on such matters.

If people knew that the Referendums (Scotland) Bill was going through Parliament, I am sure that many of them would think, “What on earth?”, because the referendums that we have had have caused utter chaos and divided our country. A wider discussion needs to take place about how we engage with people. There are politicians who believe that politics is for politicians, except when they want people’s votes.

Although Neil Findlay’s amendment 94 has been criticised, he has sought to raise the wider issue of how we build on democracy and stop people being turned off. The most common comment that I get on the doorsteps at the moment is, “We only see you when you want our votes.” The way that we do politics in this country is changing.

10:30  



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

Tomkins, Adam (Glasgow) (Con)
Mason, John (Glasgow Shettleston) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)
Arthur, Tom (Renfrewshire South) (SNP) Rowley, Alex (Mid Scotland and Fife) (Lab)

Abstentions

Harvie, Patrick (Glasgow) (Green)

The Convener

The result of the division is: For 10, Against 0, Abstentions 1.

Amendment 8 agreed to.

Amendments 9 to 22 moved—[Michael Russell]—and agreed to.

Schedule 1, as amended, agreed to.

The Convener

We will now suspend the meeting for a five-minute break.

10:42 Meeting suspended.  



10:49 On resuming—  



Section 7—Chief Counting Officer

Amendment 23 moved—[Michael Russell]—and agreed to.

Section 7, as amended, agreed to.

Section 8 agreed to.

Section 9—Functions of the Chief Counting Officer and other counting officers

Amendment 24 moved—[Michael Russell]—and agreed to.

Section 9, as amended, agreed to.

Sections 10 to 12 agreed to.

Schedule 2—Conduct rules

Amendment 25 moved—[Michael Russell]—and agreed to.

The Convener

We come to the group on day and time of poll. Amendment 80, in the name of Adam Tomkins, is grouped with amendments 96 to 98.

Adam Tomkins

Amendment 80, in my name, would ensure that the date of any referendum that was held under this bill would not be the same day on which any other election or poll was scheduled to be held throughout Scotland. The amendment would give effect to a recommendation of the Electoral Commission and to the force of evidence that the committee heard at stage 1.

Our committee adviser told us in our stage 1 inquiry:

“Research shows that holding electoral events simultaneously can lead to lower quality electoral processes.”

The Association of Electoral Administrators endorsed that view and said that

“having more than one type of event on the same day adds to the pressures and difficulties in relation to resources.”—[Official Report, Finance and Constitution Committee,18 September 2019; c 19.]

On the basis of that and other like evidence, the committee concluded that, given that referendums are most likely to be called solely on significant issues of major public interest, they should be stand-alone events. That is in the interests of those who run electoral events, such as electoral administrators, and of voters. The Electoral Commission is quite clear about that point. It said in its report on the 2016 EU referendum, which was published in September 2016, that

“the starting assumption for Governments and legislatures should be that referendums are not normally held on the same day as other significant or scheduled polls. In particular, referendums on significant constitutional questions, where political parties and other campaigners are likely to be working more closely together, should never be held on the same day as other scheduled polls.”

My amendment seeks to give force to the principle that referendums, which—let us face it—are likely under this bill to be held on significant constitutional issues, if they are held at all, should not be held on the same day as other polls.

The cabinet secretary may argue that the word ”normally“ should appear in the amendment. It does not do so for the obvious reason that, in all our interaction on the bill, I have been consistent in asking the cabinet secretary to give me examples of issues other than Scottish independence that he imagines that the bill will be used for, and he has not given me any. I do not think that this bill—

Tom Arthur

Will the member take an intervention?

Adam Tomkins

I will in a second. I do not think that it is realistic to expect that we will have referendums on budgets or reproductive rights or anything else under the bill. We are talking about a bill that is designed to pave the way for an independence referendum, and that should not be held—well, it should not be held full stop, but it should certainly not be held on the same day as any other poll in Scotland, whether a referendum or an election.

Tom Arthur

I want to understand the implications of Adam Tomkins’s amendment. If a referendum was legislated for in this Parliament and, subsequent to that, an electoral event took place simultaneously as a consequence of a UK Government action, such as a general election or a UK-wide referendum, what would happen? He used the example of 2011 when the alternative vote referendum took place on the same day as the Scottish parliamentary election.

Adam Tomkins

That experience was an unhappy one and it should not be repeated. If this Parliament were to legislate to the effect that no referendum should be held on the same day as another significant electoral event, the UK Government would want to take that very seriously. Absent that, there is nothing to stop the UK Government holding a general election on the same day as a referendum.

My amendment would not guarantee that we could not have a repeat of 2011, but it points in that direction and should therefore be adopted.

On the other amendments in the group, in the name of James Kelly, I am agnostic about changing 7 am to 6 am and changing 10 pm to 11 pm, but I am certainly not agnostic about changing polling day to a Saturday. In the light of the extraordinary intervention by the Chief Rabbi yesterday in the general election campaign, what consultation has James Kelly undertaken with the Jewish community in Scotland about whether holding a referendum on Shabbat is something that the Jewish community would feel relaxed about?

It seems to be yet another very unfortunate sign that the rights of the Jewish community are being wilfully overlooked by what used to be one of the major parties of the United Kingdom. Polling is held on a Thursday in this country for a good reason—it is not a religious day in any of the major religions in the United Kingdom. Friday voting would cause significant complications for the Muslim community, Saturday voting would cause significant complications for the Jewish community, as it is Shabbat, and Sunday would cause significant complications for practising Christians. I am not opposed to and have an open mind about changing the polling day, but I would want to see that there had been substantial consultation with religious minorities, particularly in the current context of the extraordinary intervention by the Chief Rabbi yesterday.

I urge the committee to reject amendment 96, in James Kelly’s name, and to support my amendment 80.

I move amendment 80.

James Kelly

I am pleased to speak to amendments 96 to 98. Amendment 96 is a probing amendment, and I will explain shortly why I lodged it. However, I certainly want to move amendments 97 and 98.

There is a duty on us all to seek to increase voter turnout. Thursday is always seen as the traditional polling day, but I think it is worth examining the possibility of weekend polling days. Amendment 96 prescribes a Saturday, but a Sunday could also be looked at. Moving to a day on which not as many people are at work would give a greater opportunity for people to participate. People who work on a Thursday might also have caring or childcare responsibilities that potentially restrict them in getting to the polling station. I am interested in probing whether having voting on alternative days might increase voter turnout.

With regard to the hours, I think that we should move from a 15-hour voting day to a 17-hour voting day. Increasingly, people are leading more flexible lives and have more demands on their time; therefore it makes more sense for the polls to open at 6 am and close at 11 pm. It does not seem that long ago that council elections were constrained to an 8 am start and a 9 pm finish, and the move to a 7 am start and a 10 pm finish has increased voter turnout in those elections.

I ask members to take those points on board when considering my amendments.

John Mason

My main argument, especially against James Kelly’s amendments, is that the committee has not taken evidence on them and, as Adam Tomkins indicated, some of the changes could be quite controversial and impact sections of the community. Frankly, we have not looked at the issues in any detail whatever. It would be very unfortunate to accept amendments at stage 2 when we did not consider those issues at stage 1. I feel quite strongly about that aspect of the parliamentary process—it is even worse if such amendments appear at stage 3 without any evidence having been taken.

In my opinion, to have amendments appear at stage 2, when we have not looked at those issues at stage 1, undermines the whole bill process.

11:00  



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.

11:15  



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.

11:30  



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

Rowley, Alex (Mid Scotland and Fife) (Lab)
Mason, John (Glasgow Shettleston) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Harvie, Patrick (Glasgow) (Green)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Bibby, Neil (West Scotland) (Lab)
Arthur, Tom (Renfrewshire South) (SNP)

Abstentions

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (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.

11:45  



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

Tomkins, Adam (Glasgow) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

Mason, John (Glasgow Shettleston) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Harvie, Patrick (Glasgow) (Green)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Arthur, Tom (Renfrewshire South) (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.

12:00  



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

Rowley, Alex (Mid Scotland and Fife) (Lab)
Harvie, Patrick (Glasgow) (Green)
Bibby, Neil (West Scotland) (Lab)

Against

MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Arthur, Tom (Renfrewshire South) (SNP) Mason, John (Glasgow Shettleston) (SNP)

Abstentions

Tomkins, Adam (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (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

Tomkins, Adam (Glasgow) (Con)
Mason, John (Glasgow Shettleston) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)
Arthur, Tom (Renfrewshire South) (SNP) 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.

12:12 Meeting suspended.  



12:21 On resuming—  



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.

12:30  



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

Tomkins, Adam (Glasgow) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Harvie, Patrick (Glasgow) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bibby, Neil (West Scotland) (Lab)

Against

MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Arthur, Tom (Renfrewshire South) (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.

Meeting closed at 12:46.  



Second meeting on amendments

Documents with the amendments considered at the meeting held on 4 December 2019:

Video Thumbnail Preview PNG

Second meeting on amendments transcript

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.

10:15  



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.

10:30  



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

10:45  



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.

11:00  



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.

11:15  



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

Rowley, Alex (Mid Scotland and Fife) (Lab)
Bibby, Neil (West Scotland) (Lab)

Against

Tomkins, Adam (Glasgow) (Con)
Mason, John (Glasgow Shettleston) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Harvie, Patrick (Glasgow) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Arthur, Tom (Renfrewshire South) (SNP)

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.

Meeting closed at 11:22.  



Third meeting on changes

Documents with the changes considered at this meeting:

  • Third Marshalled List of Amendments for Stage 2 (INSERT DATE FOR EXAMPLE 20 June 2019 AND LINK TO DOCUMENT)
  • Third Groupings of Amendments for Stage 2 (INSERT DATE FOR EXAMPLE 20 June 2019 AND LINK TO DOCUMENT)

Fourth meeting on changes

Documents with the changes considered at this meeting:

  • Fourth Marshalled List of Amendments for Stage 2 (INSERT DATE FOR EXAMPLE 20 June 2019 AND LINK TO DOCUMENT)
  • Fourth Groupings of Amendments for Stage 2 (INSERT DATE FOR EXAMPLE 20 June 2019 AND LINK TO DOCUMENT)

Fifth meeting on changes

Documents with the changes considered at this meeting:

  • Fifth Marshalled List of Amendments for Stage 2 (INSERT DATE FOR EXAMPLE 20 June 2019 AND LINK TO DOCUMENT)
  • Fifth Groupings of Amendments for Stage 2 (INSERT DATE FOR EXAMPLE 20 June 2019 AND LINK TO DOCUMENT)

Sixth meeting on changes

Documents with the changes considered at this meeting:

  • Sixth Marshalled List of Amendments for Stage 2 (INSERT DATE FOR EXAMPLE 20 June 2019 AND LINK TO DOCUMENT)
  • Sixth Groupings of Amendments for Stage 2 (INSERT DATE FOR EXAMPLE 20 June 2019 AND LINK TO DOCUMENT)

Seventh meeting on changes

Documents with the changes considered at this meeting:

  • Seventh Marshalled List of Amendments for Stage 2 (INSERT DATE FOR EXAMPLE 20 June 2019 AND LINK TO DOCUMENT)
  • Seventh Groupings of Amendments for Stage 2 (INSERT DATE FOR EXAMPLE 20 June 2019 AND LINK TO DOCUMENT)

Referendums (Scotland) Bill with Stage 2 amendments

Additional related information from the Scottish Government on the Bill

More information on how much the Bill is likely to cost (Supplementary Financial Memorandum)

More information on the powers the Scottish Parliament is giving Scottish Ministers to make secondary legislation related to this Bill (Supplementary Delegated Powers Memorandum)

Stage 3 - Final amendments and vote

MSPs can propose further amendments to the Bill and then vote on each of these. Finally, they vote on whether the Bill should become law