What’s the framework? The Referendums (Scotland) Bill before stage 3

Reading Time: 7 minutes

On 19 December 2019, the Parliament will consider the Referendums (Scotland) Bill at stage 3. The Bill’s passage through Parliament has been made on an accelerated timetable. It was introduced in Parliament on 28 May 2019 and the Finance and Constitution Committee was designated as the lead Committee.

This blog covers the significant changes in the Bill since it was introduced.

What’s in the Referendums (Scotland) Bill?

The Bill proposes a legislative framework for referendums held in Scotland under an Act of the Scottish Parliament. The framework sets out:

  • the franchise and arrangements for voting;
  • the conduct of the poll and counts, and
  • campaign rules.

The Bill’s stated policy objective, set out in the policy memorandum, is “to put in place a generic framework for referendums that provides technical arrangements which can be applied for specific referendums”.

At present, there is no legislation which provides specifically for referendums held under Acts of the Scottish Parliament. There is existing UK legislation which covers referendums, principally Part 7 of the Political Parties, Elections and Referendums Act 2000.

How did the Bill change at stage 2?

There were two very significant changes to the Bill at stage 2. The first was to remove the power for Ministers to call a referendum by secondary legislation; the second was to specify a minimum referendum period of 10 weeks.

There were a number of technical amendments agreed which dealt with administrative issues such as applications for emergency proxy votes. The Committee also had detailed discussion on how campaigning is regulated online, prompted by Patrick Harvie’s amendment 83. The Government introduced amendments 35, 36 and 38.

A few areas attracted significant scrutiny and debate at stage 1 and stage 2. These are explored in more detail below. A SPICe briefing on the Referendums (Scotland) Bill provides further background on these issues.

The Committee considered the Bill at stage 2 over two meetings on 27 November and 4 December.

Power to provide for referendums

As introduced, section 1 of the Bill provided a power for Scottish Ministers to call a referendum by secondary legislation. The evidence given to the Finance and Constitution Committee was that this power was unusual and unparalleled in other countries.

The view of the Institute for Government in its written evidence, for example, was that

“clause 1 of the bill, which enables ministers to make provision for referendums by regulation, be removed and future referendums be enabled by primary, not secondary legislation”

 Dr Alan Renwick of the Constitution Unit at UCL, wrote that

“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.”

In its stage 1 report the Finance and Constitution Committee recommended unanimously 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.”

The Parliament’s Delegated Powers and Law Reform Committee stage 1 report on the Bill concluded that “the Bill should be amended at Stage 2 to provide clear criteria for whether future referenda should be provided for by either primary of secondary legislation. While the formation of this criteria will require further discussion, the Committee recommends that a question put in a referendum which requires an Order 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.”

Adam Tomkins MSP brought three amendments on this issue at stage 2. Amendment 1 omitted section 1 in its entirety, instead replacing it with a provision that any referendum would need to be called under an Act of the Scottish Parliament. Amendments 76 and 77 provided alternatives, and specified that a referendum on a constitutional or moral issue would require primary legislation.

Amendment 1 was supported by the Cabinet Secretary for Government Business and Constitutional Relations, Michael Russell MSP. In his contribution to stage 2 proceedings on the amendment, Mr Russell explained that  as he “set out in the stage 1 debate, I have accepted the argument that most referendums should be triggered by primary legislation.”

He continued to explain that he had considered “whether there are circumstances in which a referendum could be provided for by secondary legislation, subject to some form of super-affirmative procedure” as is the case in New Zealand. The Cabinet Secretary confirmed, however, that he had “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… so I have put my name to Mr Tomkins’s amendment, I support it and I would encourage the committee to support it.”

Amendment 1 was unanimously accepted by the Committee. Amendment 76 was withdrawn and amendment 77 was not moved. The result being that the Bill now provides that a referendum must be called under an Act of the Scottish Parliament (primary legislation).

Referendum questions

Section 3 of the Bill is concerned with referendum questions and the Electoral Commission’s consideration of them. As introduced, the Bill contained provision at section 3(7) for Ministers to specify in subordinate legislation the wording of any question in a referendum without consulting the Electoral Commission if the Commission has “previously published a report setting out their views as to the intelligibility of the question or statement or recommended the wording of the question or statement.”

The Scottish Government’s position was that questions should not have to be tested again where they have been previously used and are familiar to voters.

Prof Toby James told the Committee that “the Electoral Commission should be fully involved” stating that he “cannot see any advantage in limiting its role or the time that it has available to do that.”

In its written evidence to the Committee, the Electoral Commission stated that it:

“firmly recommends that it must be required to provide views and advice to the Scottish Parliament on the wording of any referendum question included in legislation under this proposed framework, regardless of whether we have previously published our views on the proposed wording.”

In an evidence session with the Committee on 18 September 2019, the Electoral Commission argued that question testing was important, regardless of whether the question has been used before, as “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.”

The Committee’s stage 1 report 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.”

On 21 November, the Cabinet Secretary for Government Business and Constitutional Relations wrote to the Convener of the Finance and Constitution Committee, Bruce Crawford MSP, about discussions with the Electoral Commission on referendum questions.

The letter explained that the Cabinet Secretary had lodged amendments at stage 2 (amendments 90, 91 and 92) which “would limit the use of any previously tested question to the lifetime of the Parliament which approved it”. Amendment 92 also allows for the Parliament to decide to extend the validity period of a question to a second Parliamentary term without further testing.

The Electoral Commission also issued a briefing ahead of stage 2.

Adam Tomkins MSP lodged amendment 79 which provides a role for the Electoral Commission in testing all referendum question, even if they have been used in a previous referendum.

Debate on this issue was the most fiercely contended at stage 2. Adam Tomkins argued that the Scottish Government had failed to come to an agreement with the Electoral Commission and that his amendment 79 was the only one which sufficiently addressed the concerns of the Committee in light of its recommendation at stage 1. Moving the amendment, he said:

“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.”

Mr Tomkins went on to say that whilst he welcomed “the constructive engagement between Mr Russell’s office and the Electoral Commission… the fact that that engagement has not yet led to an agreement between the Government and the Electoral Commission about the issue.”

The Cabinet Secretary urged members of the Committee to oppose amendment 79 and instead support his amendments, stating that:

“Taken together, my amendments would mean that a referendum question on which the Electoral Commission had previously reported would have a limited life…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.”

Conservative and Labour members of the Committee supported amendment 79, but the amendment was not agreed to, with SNP and Green members opposing the change. The Committee did accept the Cabinet Secretary’s amendments 90, 91 and 92 on division. The Committee split on the same party lines, with SNP and Green members supporting the Cabinet Secretary’s amendments and Labour and Conservative members opposing them.

The result being that the Bill now contains provision for a question not to be retested by the Electoral Commission if it is being used within the ‘validity period’ as defined in section3(8). This is the session of the Scottish Parliament in which the proposed date of the referendum falls, or if the Scottish Parliament agrees, the session of the Parliament in which the proposed date of the referendum falls and the proceeding session.

Minimum regulated period

As introduced the Bill did not specify a minimum regulated period. This is the period in which campaigning activity and spend is regulated.

The Committee heard that equivalent UK legislation the Political Parties, Elections and Referendums Act 2000 sets a minimum 10 week regulated period.

Witnesses, including the Electoral Commission and the Institute for Government, were supportive of introducing a minimum period. The Cabinet Secretary was also open to its inclusion. The Finance and Constitution Committee concluded in its stage 1 report that the Bill “should be amended to include a minimum period of 10 weeks.”

Adam Tomkins MSP lodged amendment 4 at stage 2 which met the committee’s recommendation for a 10 week minimum regulated period. The Cabinet Secretary also lodged amendment 75 which sought to achieve a similar 10 week minimum period.  Jackie Baillie MSP also lodged an amendment (amendment 4A) which proposed a 12 week minimum regulated period. Speaking to the amendment, Jackie Baillie said:

“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.”

The Committee unanimously agreed amendment 75 in the name of the Cabinet Secretary. Amendments 4 (Adam Tomkins MSP) and 4A (Jackie Baillie MSP) were withdrawn. The effect is that the Bill as amended at stage 2 specifies a minimum 10 week regulated period for any referendum.

What happens now?

At stage 1 the SNP and the Greens supported the general principles of the Bill whilst the Conservatives, Labour and the Liberal Democrats were opposed.

It will be interesting to see whether the amendments at stage 2 are sufficient for the Bill to receive wider party support at stage 3 on 19 December.

Sarah Atherton, SPICe research