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Referendums (Scotland) Bill: Stage 1

Part of the debate – in the Scottish Parliament on 7th November 2019.

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Photo of Bruce Crawford Bruce Crawford Scottish National Party

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.