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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 Scottish Government 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 Scottish Government document that explains the bill.

The Bill at different stages

'Bills' are proposed laws. Members of the Scottish Parliament (MSPs) discuss them to decide if they should become law.

Here are the different versions of the Bill:

The Bill as introduced

Referendums (Scotland) Bill

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

Bill is at ScottishParliament.SC.Feature.BillComponents.Models.BillStageModel?.DefaultBillStage?.Stage_Name stage.

Where do laws come from?

The Scottish Parliament can make decisions about many things like:

  • agriculture and fisheries
  • education and training
  • environment
  • health and social services
  • housing
  • justice and policing
  • local government
  • some aspects of tax and social security

These are 'devolved matters'.

Laws that are decided by the Scottish Parliament come from:

Government Bills

These are Bills that have been introduced by the Scottish Government. They are sometimes called 'Executive Bills'.

Most of the laws that the Scottish Parliament looks at are Government Bills.

Hybrid Bills

These Bills are suggested by the Scottish Government.

As well as having an impact on a general law, they could also have an impact on organisations' or the public's private interests.

The first Hybrid Bill was the Forth Crossing Bill.

Members' Bill

These are Bills suggested by MSPs. Every MSP can try to get 2 laws passed in the time between elections. This 5-year period is called a 'parliamentary session'.

To do this, they need other MSPs from different political parties to support their Bills.

Committee Bills

These are Bills suggested by a group of MSPs called a committee.

These are Public Bills because they will change general law.

Private Bills

These are Bills suggested by a person, group or company. They usually:

  • add to an existing law
  • change an existing law

A committee would be created to work on a Private Bill.

Bill stage timeline

The Referendums (Scotland) Bill is currently at Stage 1.

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

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

Video Thumbnail Preview PNG

First meeting transcript

The Convener

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

Does Rebecca Whyte want to make an opening statement?

Rebecca Whyte (Scottish Government)

No. I am quite happy not to make one.

The Convener

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

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

Penny Curtis (Scottish Government)

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

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

The Convener

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

Penny Curtis

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

Adam Tomkins

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

Penny Curtis

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

Adam Tomkins

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

Penny Curtis

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

Adam Tomkins

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

Penny Curtis

They certainly put a fixed timetable around that.

Adam Tomkins

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

Penny Curtis

That is my understanding.

Adam Tomkins

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

Penny Curtis

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

Adam Tomkins

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

Penny Curtis

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

Adam Tomkins

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

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

Rebecca Whyte

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

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

Adam Tomkins

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

Rebecca Whyte

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

Adam Tomkins

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

Rebecca Whyte

That is right.

Adam Tomkins

Thank you.

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

Rebecca Whyte

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

Adam Tomkins

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

Rebecca Whyte

Yes.

Adam Tomkins

What is that difference?

Rebecca Whyte

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

Adam Tomkins

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

Rebecca Whyte

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

Adam Tomkins

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

Graham Fisher (Scottish Government)

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

Adam Tomkins

That is the legal position under the bill as introduced.

Graham Fisher

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

Adam Tomkins

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

Graham Fisher

That is correct.

Adam Tomkins

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

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

he is talking about the proposal in section 1—

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

What is the Scottish Government’s reaction to that?

Penny Curtis

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

10:30  



Adam Tomkins

Do you accept that the proposal in section 1

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

Penny Curtis

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

Adam Tomkins

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

Penny Curtis

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

Patrick Harvie

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

Penny Curtis

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

Patrick Harvie

The Government has not ruled that out.

Penny Curtis

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

Tom Arthur (Renfrewshire South) (SNP)

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

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

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

Rebecca Whyte

That is correct.

Tom Arthur

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

Rebecca Whyte

There is nothing in the framework that excludes that possibility.

Tom Arthur

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

Rebecca Whyte

Yes.

Tom Arthur

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

Willie Coffey

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

Rebecca Whyte

Yes.

Willie Coffey

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

Rebecca Whyte

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

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

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

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

Willie Coffey

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

Rebecca Whyte

Is that in relation to breaches?

Willie Coffey

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

Rebecca Whyte

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

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

Willie Coffey

Did you touch on broadcasting?

Rebecca Whyte

Yes.

Graham Fisher

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

Willie Coffey

So the Scottish Government would have to obtain agreement.

Graham Fisher

Yes.

Rebecca Whyte

Yes.

James Kelly

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

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

Penny Curtis

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

James Kelly

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

Penny Curtis

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

James Kelly

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

Emma Harper

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

The Convener

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

Rebecca Whyte

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

Emma Harper

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

Graham Fisher

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

10:45  



Alexander Burnett

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

Colin Brown (Scottish Government)

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

Alexander Burnett

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

Colin Brown

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

Rebecca Whyte

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

Alexander Burnett

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

Rebecca Whyte

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

The Convener

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

Graham Fisher

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

The Convener

Did the referendum on the EU contain such a provision?

Graham Fisher

No.

Alexander Burnett

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

Penny Curtis

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

Alexander Burnett

Is there no plan for that to be specified?

Penny Curtis

We have no plans to do that.

Colin Brown

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

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

Patrick Harvie

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

Penny Curtis

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

Patrick Harvie

That would be quite normal.

Rebecca Whyte

Yes.

The Convener

Adam Tomkins has a supplementary question.

Adam Tomkins

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

Rebecca Whyte

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

Adam Tomkins

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

Graham Fisher

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

Adam Tomkins

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

Graham Fisher

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

Adam Tomkins

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

Graham Fisher

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

Adam Tomkins

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

Graham Fisher

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

The Convener

Neil Bibby has questions on franchise issues.

Neil Bibby

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

Rebecca Whyte

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

Neil Bibby

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

Rebecca Whyte

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

Neil Bibby

Even if we leave the European Union?

Rebecca Whyte

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

Neil Bibby

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

Rebecca Whyte

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

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

Neil Bibby

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

Rebecca Whyte

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

Neil Bibby

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

Rebecca Whyte

Yes, the bill makes no change to that.

Colin Brown

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

Neil Bibby

Thank you.

Murdo Fraser (Mid Scotland and Fife) (Con)

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

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

Penny Curtis

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

Murdo Fraser

Thank you. That is helpful.

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

Penny Curtis

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

Murdo Fraser

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

Penny Curtis

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

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

11:00  



Murdo Fraser

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

Penny Curtis

Nothing that ministers have talked to us about.

Murdo Fraser

Thank you.

The Convener

Patrick Harvie has a question on transparency.

Patrick Harvie

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

Rebecca Whyte

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

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

Patrick Harvie

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

Rebecca Whyte

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

Patrick Harvie

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

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

Graham Fisher

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

Patrick Harvie

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

Graham Fisher

I think that I can say yes to that.

Patrick Harvie

It would be devolved.

Graham Fisher

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

Patrick Harvie

What about online?

Penny Curtis

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

Patrick Harvie

Thank you.

Adam Tomkins

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

Rebecca Whyte

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

Colin Brown

And Scottish Parliament elections.

Rebecca Whyte

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

Adam Tomkins

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

Graham Fisher

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

Adam Tomkins

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

The Convener

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

Graham Fisher

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

The Convener

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

Colin Brown

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

The Convener

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

11:09 Meeting suspended.  



11:17 On resuming—