At a glance – Referendums (Scotland) Bill

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The Referendums (Scotland) Bill was introduced in the Scottish Parliament on 28 May.  This follows the First Minister’s commitment, made in her statement on 24 April, to bring forward legislation “to set the rules for any referendum that is, now or in the future, within the competence of the Scottish Parliament” .

This blog considers the principal provisions of the Referendums (Scotland) Bill. A previous SPICe blog on the detail of the First Minister’s statement of 24 April gives some of the background to the introduction of the Bill.

A full SPICe briefing on the Referendum (Scotland) Bill will be published ahead of stage 1.

What’s the situation at present?

There is existing UK legislation which covers elections and referendums, principally the Political Parties, Elections and Referendums Act 2000.  Part 7 of that Act provides a framework for referendums held under Acts of the UK Parliament.

At present, there is no legislation providing a standing framework for referendums held under Acts of the Scottish Parliament.

The referendum on Scottish independence, held on 18 September 2014, was provided for by the Scottish Independence Referendum Act 2013 and the Scottish Independence Referendum (Franchise) Scotland Act 2013. These Acts provided specifically for the 2014 referendum after a Section 30 Order was granted which meant that the referendum was within the competence of the Scottish Parliament.

What does the Bill do?

The Referendums (Scotland) Bill provides a legislative framework for referendums held in Scotland on subjects which are within the competence of the Scottish Parliament, as well as giving Scottish Ministers a power to hold such referendums.

For a referendum to be within the legislative competence of the Scottish Parliament, it would need to be on a matter which is not-reserved (i.e. devolved). Matters which are reserved to the UK Parliament are set out at Schedule 5 of the Scotland Act 1998.

The Bill provides, in Section 1, a power for Scottish Ministers to make regulations (subordinate legislation) to hold referendums in Scotland on topics which are within the legislative competence of the Scottish Parliament. Any such regulations would specify the question or questions to be asked, the form of the ballot paper and the date on which the referendum is to be held, and Ministers would have to consult the Electoral Commission before laying. Regulations would be subject to the affirmative procedure, therefore requiring Parliamentary approval. Subordinate legislation cannot, however, be amended during Parliamentary scrutiny.

The Bill also sets out the requirements associated with referendum questions (Section 3); details of the franchise (who is allowed to vote) (Section 4), and provision about voting (Section 6).

In setting out a legislative framework for referendums in Scotland, the Bill is concerned with ensuring a high standard of electoral administration. The Policy Memorandum for the Bill gives the purpose of the Bill as maintaining ‘the high standards achieved by the referendum on Scottish Independence in 2014’ by, in particular, ensuring that:

  • entitlement to vote is in accordance with clear principles and is determined in a fair and consistent manner
  • voting and counting processes are clear and transparent, operate smoothly and effectively, and are subject to effective controls and audit
  • campaigns leading up to a referendum are well regulated and independent from Parliament and Government. Rules will be in place so that spending by those campaigning is limited to reasonable levels and that all sides in campaigns will operate on a level playing field.

The Bill therefore sets out the rules governing how a referendum poll should be conducted. It also sets out the rules to regulate campaigning at a referendum. It provides for persons and organisations to become permitted participants, and for the designation of official campaigns. The official campaigns in the UK’s EU referendum were, for example, designated as Vote Leave and Britain Stronger in Europe. The Bill also deals with the administration of, and limits on, spending and donations to campaign participants.

How is the Bill structured?

The Referendums (Scotland) Bill consists of 42 sections covering matters such as the consideration of referendum questions; franchise; manner of voting, and the appointment of the Chief Counting Officer to name but a few. The detailed provisions are set out in seven schedules which detail:

  • Voting in the referendum.
  • Conduct rules.
  • Campaign rules.
  • Campaign rules: investigatory powers of the Electoral Commission.
  • Campaign rules: civil sanctions.
  • Offences
  • Interpretation

In a statement ‘Next steps on Scotland’s Future’, made on 29 May 2019, Michael Russell MSP, Cabinet Secretary for Parliamentary Business and Constitutional Relations, stated the Scottish Government’s desire for the legislation to be on the statute book by the end of this year.

Sarah Atherton, SPICe Research