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Referendums (Scotland) Bill: Stage 3

– in the Scottish Parliament on 19th December 2019.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

The next item of business is stage 3 proceedings on the Referendums (Scotland) Bill. In dealing with the amendments, members should have with them the bill as amended at stage 2, the marshalled list and the groupings of amendments.

The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for that first division will be 30 seconds. Thereafter, the period will be one minute for the first division after each debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak buttons as soon as possible after I call that group.

The Presiding Officer:

Amendment 1, in the name of Adam Tomkins, is grouped with amendments 21 and 2.

Photo of Adam Tomkins Adam Tomkins Conservative

We will be supporting amendment 21, which is the only Government amendment in the group. I will let the cabinet secretary speak to that in due course. I will speak to my amendments 1 and 2. The operative one is amendment 2, which seeks to enshrine what has become known as the Gould principle in this legislation.

Ron Gould, as members will know, was appointed to conduct an independent review into electoral events in Scotland following the combined local authority and Scottish parliamentary elections in May 2007, and he published his report later that year. His recommendations included what has become known as the Gould principle, which is to say that electoral legislation, including legislation on referendums, cannot be applied to any election or referendum held within six months of the new provision coming into force. My amendment seeks to give effect to that principle for the purposes of this legislation. It is not about delaying any referendum on any subject; it is about ensuring that the people who run referendums for us and the people who vote in referendums have enough time to prepare for the referendum and for its effective delivery, whether they are helping to put it on or participating in it.

The Gould principle is widely accepted by electoral administrators: for example, the Finance and Constitution Committee was told by the Scottish Assessors Association that it is important for the effective delivery of a referendum that the rules surrounding the running of it are clear and in place at least six months prior to the referendum taking place. The Electoral Commission is of the same view. It has recommended that all legislation for any future referendums should be clear at least six months before it is required to be implemented. That is to allow sufficient time for campaigners and administrators fully to prepare to comply with the rules once they are in force, but it is also vital for the interests of the people who matter most in referendums, which is to say the people who vote in them. It enables voters to be informed about the issues at stake in the referendum and to have confidence in the process.

That is one of the elements of the gold standard of referendums; we must legislate for referendums so that voters have the fullest possible confidence in the process, leading to a free and fair referendum with a result that has overall legitimacy for the public on both the winning and the losing sides.

In its report on the Scottish independence referendum in 2014, the Electoral Commission highlighted the benefits of the legislation being clear, not just six months but, in that case, nine months before the referendum date.

All that has been accepted by the cabinet secretary, who gave evidence to the Finance and Constitution Committee on the bill a few weeks ago. He accepted in his evidence, as the committee recorded in its report, that six months is the gold standard. The amendments in my name in this group are designed to give effect to the Gould principle, which ought to be one of the fundamental principles of our electoral law, and which is simply to say that all the rules must be in place six months before any electoral event that occurs under those rules. That is the force of amendments 1 and 2.

I move amendment 1.

Photo of Michael Russell Michael Russell Scottish National Party

It is important to say at the outset that the vast majority of the amendments that will be debated this afternoon are on technical matters. There will be two debates on political matters of some import, but I hope that the chamber can come together on many of the issues that will be discussed. Those were ventilated greatly at stage 2, and solutions were found to issues that were raised at that stage. That will become apparent.

I should also say what this bill is, because I want to make that absolutely clear. This is a framework bill for referendums. It is not about the approval of a specific referendum. The approach that the Scottish Government took to the bill from the very beginning was to say, “Let us put a framework in place, and then let us approach that framework with not even secondary legislation but a shorter bill that confirms the subject, the question and the date.”

In supporting this bill, all that is being supported is the principle that there will be a piece of legislation that allows and organises referendums. That will become important in a second when I address the amendments.

As Mr Tomkins said, I addressed this issue during the stage 1 evidence sessions on the bill, and I stand by the comments that I made at that time. I think that the six-month period is a reasonable one, but I am not absolutely committed to it in all circumstances, for a variety of reasons.

Some referendums may not necessarily need that long, depending on the topic. There are global examples of referendums that take place comparatively quickly, on comparatively minor matters. To tie a referendum absolutely to six months is not necessary.

The second issue, which Mr Tomkins raised, is about ensuring that administrators have adequate time to know the rules and regulations. This is, as I said, a framework bill. It contains the rules and regulations—there will be no changes to this bill after stage 3, so people will know, from now on, what those are.

Photo of Adam Tomkins Adam Tomkins Conservative

This is an important point. It is now the case that any future referendum on a devolved matter in Scotland will require an act of this Parliament. Such an act authorising any referendum on any future devolved subject at any point in the future will, of course, be able to amend this bill. So, it is not quite the case that this bill cannot be amended after today, because this bill could be amended by any future enactment that triggers and authorises a referendum on a devolved matter in Scotland.

Photo of Michael Russell Michael Russell Scottish National Party

The principle of this bill is clear and has been accepted by the committee. This is the framework to which other details of a referendum can be plugged in. This is how referendums will be run in Scotland. The administrators and others will know how referendums will be run in Scotland. In a sense, we are catching up, because some of those rules and regulations are in the equivalent Westminster legislation from 2000.

Of course, the last time a referendum was organised in Scotland by the Scottish Parliament, a different approach was taken and everything pertaining to that referendum was in that bill. This time, we know how referendums are going to operate. The key point is that administrators and others will know how referendums will be run—they will know the rules. Therefore, the period of six months is not an issue for those matters.

The Government has also set a 10-week referendum period—we agreed to that at stage 2. There are a number of weeks included in appointing designated campaigns. Nothing is being rushed in connection with any potential referendum. The date of any future referendum will be set out in primary legislation, giving Parliament the ability to amend or move the proposed date if it felt that it was too soon.

I urge members not to tie the hands of every subsequent Administration—or of every subsequent request to an Administration—with an absolute. Nobody is in any doubt that proper time should pass. That is confirmed here, and in the detail that the bill gives about the referendum period, but to tie it absolutely to six months is not only unnecessary but unhelpful.

Amendment 21 will make a minor but valuable technical amendment, to put beyond any doubt—by putting it in the bill—that it is intended that the act should apply only to a referendum that is held under an act of the Scottish Parliament. That will become relevant later this afternoon when we consider what might happen if dates clash in relation to a referendum. I am glad that Mr Tomkins indicated that he will support amendment 21.

I ask members not to support amendments 1 and 2, in Mr Tomkins’s name, because they create an absolute that I do not think is required.

Photo of Patrick Harvie Patrick Harvie Green

I ask Mr Tomkins—if he is listening; I am not sure that he is—to clarify, when he winds up the debate on group 1, exactly what he intends. If we agree to amendments 1 and 2, am I correct in assuming that if the Scottish Government subsequently introduces a bill for a specific referendum sooner than six months before the bill that we are considering has received royal assent, the framework in this bill will not apply and the bill to establish the referendum will have to copy and paste all the rules that are in the framework bill? In effect, the people who administer and participate in the referendum will not have clarity until the subsequent, referendum bill has passed.

If that is correct, surely the way to achieve clarity about the rules at the earliest time and for the longest period is to ensure that the framework bill that we pass today applies, instead of bringing all the work in the bill into further doubt and confusion.

Photo of Adam Tomkins Adam Tomkins Conservative

I am grateful to Patrick Harvie for making that point. My point is simply this: we had a problem in Scotland in 2007, when multiple electoral events took place on the same day, and we invited an independent investigator to report on that for us. He concluded that it would be appropriate for the law to reflect the principle that the rules should be set six months in advance of any event taking place under those rules.

Given our history with elections and referendums in Scotland, it behoves us to consider and reflect on those recommendations.

I do not think that there should be a referendum on any subject in Scotland within the next six months under the rules in the bill, because I think that the rules in the bill need to be understood as fully as possible by the people who help to run referendums on our behalf and by the people who vote in referendums, and all the expert testimony is that that takes a minimum of six months. That is the proposal that I think should be the opening provision of the bill.

Photo of Patrick Harvie Patrick Harvie Green

Let me be very clear. What Adam Tomkins is suggesting is that if—and it is a big if—a referendum were to be proposed within that time period, the rules should be set later rather than earlier; the rules should be set in the subsequent bill, rather than today.

Photo of Adam Tomkins Adam Tomkins Conservative

No. The rules should be those that apply under this bill, but no such referendum should be held within six months, because that is what the Gould principle means.

During a number of the debates that we will have this afternoon, we will hear references not to the Gould principle but to the gold standard. It seems to me that, with this bill, we are trying to enact state-of-the-art referendums legislation for Scotland that looks to the future—and therefore needs a degree of flexibility, which we will talk about in the debates on later groups of amendments—and which needs to reflect the best possible national and international practice on the running and holding of referendums.

The key element of that, surely, is that we must all put voters’ interests first. That is what the Electoral Commission is there for. The Electoral Commission is there to identify the best interests of voters, and it has said that it supports the Gould principle and it is in the interests of voters that referendum and election rules are set in legislation and are clear at least six months in advance of any referendum or election taking place under those rules.

If we are serious about trying today to enact the best possible legislation for referendums in future in Scotland, we should be supporting rather than resisting amendments such as amendments 1 and 2.

I press amendment 1.

The Presiding Officer:

The question is, that amendment 1 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

We will move to a vote after a five-minute suspension in order to call members to the chamber.

14:00 Meeting suspended.

14:05 On resuming—

We move to the division on amendment 1.

Division number 1 Referendums (Scotland) Bill: Stage 3

Aye: 54 MSPs

No: 67 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 54, Against 67, Abstentions 0.

Amendment 1 disagreed to.

Amendment 21 moved—[Michael Russell]—and agreed to.

Amendment 2 moved—[Adam Tomkins].

The question is, that amendment 2 be agreed to. Are we agreed?

Members:

No.

There will be a division.

Division number 2 Referendums (Scotland) Bill: Stage 3

Aye: 55 MSPs

No: 66 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 55, Against 66, Abstentions 0.

Amendment 2 disagreed to.

Amendment 6, in the name of Michael Russell, is grouped with amendments 7, 3, 8, 9 and 10. If amendment 3 is agreed to, I cannot call amendment 8, as it will have been pre-empted.

Photo of Michael Russell Michael Russell Scottish National Party

The issue of question testing has been the most difficult and, probably, the most divisive issue in the bill. We have debated the issue at length, and the Government agreed concessions at stage 2 in an attempt to make the framework workable and agreeable to Parliament.

Today, I have brought forward further enhancements to the proposal that was accepted at stage 2 by the committee. I am pleased to say that they follow further discussions with the Electoral Commission, which has indicated that the amendments will enable Parliament to seek advice whenever it wishes to do so. That addresses the commission’s concern at stage 2.

Amendments 6 to 10 will require the Electoral Commission, where its views on the wording of a referendum question have been requested either by the Scottish Government or by Parliament, or when it is consulted before the lodging of a motion to extend the validity period of a question from the preceding session of Parliament, to lay its views before Parliament as soon as is reasonably practicable, and to publish those views. The commission will therefore be in a position to respond not just to the Government but to Parliament on those issues. It is standard practice for the commission to publish its views, but including a duty to publish, as we will do in the bill, means that the process can be seen to be entirely transparent.

Amendments that were agreed at stage 2 require ministers to lay a report before Parliament stating any views that have been expressed by the Electoral Commission as to the intelligibility of the question. However, on reflection and after discussion with the commission, I have agreed that the commission should offer its views direct to Parliament. Amendments 6 to 9 therefore provide for that.

Amendment 10 would allow Parliament, through a resolution, to consult the Electoral Commission on the wording of a question. Again, that will allow Parliament at any time to seek a view as to whether a question remains valid, and to seek the commission’s expert advice on the intelligibility of the question. That responds to a request from the commission and will adjust the amendments that were made at stage 2.

I hope that members will acknowledge the major concessions that the Government has made on the issue, with the aim of achieving cross-party agreement. Members will also note that the Electoral Commission has said that my amendments will enable Parliament to seek advice

“whenever it wishes to do so”,

thereby fulfilling the request that the commission made after stage 2. I therefore urge members to support amendments 6 to 10.

I am disappointed that Adam Tomkins has lodged amendment 3, when his stage 2 amendment that would have required all questions to be tested, even if they had previously been tested in the same session of Parliament, was rejected by the lead committee. At stage 2, Mr Tomkins made the point that we must make sure that we do not bypass the Electoral Commission: my proposals absolutely fulfil that requirement. The Electoral Commission is central to my proposals, but a blanket requirement for all questions to be retested, instead of the commission being asked for its views, is not necessary. The bill will ensure that the commission is able to provide its expert advice to Parliament. If the commission’s view is that a previously tested question requires further testing, the Parliament can request that the commission do that.

Given that the Finance and Constitution Committee agreed with the principles of my proposal at stage 2, and that further adjustments to that proposal have been welcomed by the commission, I ask members—

Photo of Neil Findlay Neil Findlay Labour

I will make an appeal to the cabinet secretary. If he seeks to bring people on board and to build consensus, he is going about it exactly the wrong way by seeking to manipulate the situation and the question. I say to him with 100 per cent sincerity that if he seeks to bring members on board, he must be seen to be 100 per cent straight on this. Seeking to manipulate the situation will have the opposite effect.

Photo of Michael Russell Michael Russell Scottish National Party

With respect, I say that I do not think that Mr Findlay has listened to the points that I have made. I want to make it clear that I have moved a considerable distance in order to ensure that not only the Government but Parliament can seek permission, and that any question will expire. The only small area of difference between us is on whether the same question could be used within the same parliamentary session.

I will give Mr Findlay two examples of why that is necessary. If a bill to hold a referendum were to be passed in the first year of a parliamentary session and, for some reason, that referendum was delayed, the same question could be asked throughout that parliamentary session. A question must expire at some stage: it could not be reused in a subsequent session without Parliament specifically supporting that.

Why would a question be reused? We need to look at the evidence on that. Sometimes—as I said at the start of the process—questions have validity and are well understood: opinion poll evidence on that is absolutely unequivocal. A question that is well understood, recognised and used repeatedly, for example in opinion polling—

Photo of Michael Russell Michael Russell Scottish National Party

I want to finish the point.

It is absolutely obvious that such a question would be something that the public would know about. Even so, I have accepted the right of Parliament and the Electoral Commission in that context. Nobody can hide from the fact that the commission will be able to say what its position is. I am absolutely sure that if the commission says that the question should be tested again, Parliament and the Government will agree with it. Far from avoiding things, we have accepted everything that has been put to us.

Photo of Adam Tomkins Adam Tomkins Conservative

This is the most crucial point in this afternoon’s proceedings. If what the cabinet secretary says is true—if there are referendum questions that are clear and well understood by the public—what does he have to fear?

Photo of Michael Russell Michael Russell Scottish National Party

I have absolutely nothing to fear. The commission has made it clear that it is “satisfied” with the process. As I said to Mr Tomkins at general question time, the word “satisfied” is in the commission’s briefing.

In all the circumstances, we have taken a sensible and commonsense approach. We have given way to Parliament and the commission—we have listened to the arguments and put forward a reasonable position.

Photo of Michael Russell Michael Russell Scottish National Party

I will not, at the moment.

I am asking Parliament to be reasonable about the progress that we have made, and not to be unreasonable. I have to say that, so far, Mr Tomkins has not been reasonable, but I hope that other parties will look at what we are proposing and realise the progress that has been made, which is overwhelming.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

I thank the cabinet secretary for giving way, but what he said about the Electoral Commission is just not true. In its letter to all MSPs, it says:

“we continue to be of the view that should a future referendum on Scottish independence be brought forward, the Commission should be required to reassess the question regardless of whether” it has been asked previously.

Photo of Michael Russell Michael Russell Scottish National Party

I am sorry, but the commission says that it is “satisfied” with the progress that has been made. That is clear from the document. Members are, in order to take us back to where we started, ignoring the progress that has been made and the fact that Parliament and the commission will have those rights. That is not a sensible position to take.

I ask members to think very carefully, because my amendments represent a major step forward and several major concessions by the Government. I hope that members will support my amendments, as pragmatic recognition of the progress that has been made, and that they will not revert to political type—which, unfortunately, is what we have seen.

I move amendment 6.

Photo of Adam Tomkins Adam Tomkins Conservative

At stake here is a very simple principle that has applied to every referendum that has been held in the United Kingdom since the creation of the Electoral Commission. The principle is that ministers propose referendum questions, the Electoral Commission tests those questions, with the interests of voters being put first, then Parliament decides, on the basis of recommendations that are made to us by the Electoral Commission. The cabinet secretary is seeking to rig the rules, which is completely unacceptable.

Throughout this entire process, the Electoral Commission has been robust, fearless and entirely consistent. Earlier in the process—at stage 1—the Electoral Commission said 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 ... regardless of whether we have previously published our views on the proposed wording.”

We are now at stage 3, and the cabinet secretary, both at general question time earlier and in this debate, is wilfully misleading Parliament about what the Electoral Commission is saying. In its briefing, the Electoral Commission says:

“we continue to be of the view that should a future referendum on Scottish independence be brought forward, the Commission should be required to reassess the question regardless of whether it will take place within the” so-called “validity period” of the cabinet secretary’s imagination. It says that that

“will ensure confidence in the legitimacy of the referendum result.”

Only one amendment in the group would give effect to the independent Electoral Commission’s view. That is amendment 3, which is in my name. The amendments in Mr Russell’s name continue to do him quite a disservice, because they are dishonourable. He is trying to rig the rules of a future referendum in this country to suit his partisan interests. The Parliament’s Finance and Constitution Committee unanimously recommended that he should not be allowed to get away with that. The committee unanimously recommended that Mr Russell should seek the “agreement” of the Electoral Commission—not its satisfaction, although it is not really “satisfied”—before stage 2. He manifestly failed to do that. He has not even sought, achieved or attained its agreement before stage 3. The Electoral Commission is not “satisfied” because, as the bill stands, reassessment of the intelligibility of a referendum question that has been used previously will not be required. Why is that the cabinet secretary’s position? He thinks that the position suits the Scottish National Party, but it does not suit voters.

As I said earlier this afternoon, if we are serious about passing legislation on referendums that meet the highest international standards of best practice, Parliament will accept my amendment and reject all of Mr Russell’s amendments in the group. This Parliament should not stand for rigging of future referendums.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

The Liberal Democrats support amendment 3, in the name of Adam Tomkins, because that is the right thing to do. On this issue, the Electoral Commission, in its stage 3 briefing—every MSP has received it, so we cannot pretend that we do not know this information—clearly says it continues

“to be of the view that should a future referendum on Scottish independence be brought forward, the Commission should be required to reassess the question regardless of whether it will take place within the ‘validity period’. This will ensure confidence in the legitimacy of the referendum result.”

Surely that is what we all want.

This is a very serious issue—it is no small matter. The Electoral Commission’s view is that any future question will need to be assessed, and that a question that has previously been asked will have to be reassessed in the light of experience.

All framework bills should have support from across the chamber. This bill should not be controversial but, unfortunately, the SNP Government and Mike Russell have made it a partisan issue by trying to circumvent the Electoral Commission’s input on a question that the Scottish Government wants to re-ask. The cabinet secretary is being deliberately disingenuous about what the Electrical Commission is saying to us. We all know what it is telling us: it is not what Mike Russell has said. That clear attempt at manipulation is not acceptable—it should not be acceptable to any member. Agreement to amendment 3 is essential in order to right that wrong.

The very idea that a “validity period” is needed is nonsense. That is simply designed to enable the SNP Government to fix the question that it wishes to put. That undermines the whole bill. If amendment 3 does not succeed because the two parties in the chamber that are supportive of it—I assume that the Greens support it; I would love to be convinced that they are listening to the argument—

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

That is good; I am pleased that the Greens are listening. Maybe I was doing them a disservice, but I would like to hear what they have to say about the matter.

The SNP Government is certainly trying to fix things. The very idea that MSPs have to articulate such concerns should be a worry to everybody in the chamber. The mask of nationalism has really slipped—[

Interruption

.] It has. The whole idea of a “validity period” for the question to be asked is an attempt by the SNP Government to win any future referendum by hook or by crook.

Amendment 3 would restore the bill to what it should be—an agreed framework bill. If Amendment 3 is not passed, the Liberal Democrats will oppose the bill at decision time.

Photo of Alex Rowley Alex Rowley Labour

If the SNP and Green members do not support Professor Tomkins’s amendment 3, they are setting up the bill not to be the gold standard of referendums, but legislation that has been put through in order to rig the question. That is the reality of the situation. I cannot, for the life of me, understand why the Government will not listen to the overwhelming expertise and advice that has been given.

On the issue of question testing, expert advice has been clear. At stage 1, the Electoral Commission told the Finance and Constitution Committee that it strongly believes that it

“should be asked to test the question”,

even when that question has been asked before. Its view was 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.”—[

Official Report

,

Finance and Constitution Committee

, 18 September 2019; c 37.]

Who would object to that? I ask myself why anyone would ignore that advice and the answer must be that they want to have the opportunity, if needed, to rig the question.

The Law Society noted that it would be very concerning if it was assumed that,

“once approved, the wording of the question is suitable for ever.”

At stage 2, the Government rejected Opposition amendments and amended the bill to create the “validity period”, which represents a period of time during which the question is subject to less scrutiny by the Electoral Commission—that is not acceptable. If best practice is not the Government’s key concern, we must assume that it is seeking to circumvent proper process.

We will support Adam Tomkins’s amendment 3 to delete the “validity period”. [

Interruption

.]

Members can sit in the Parliament and shout and hee haw all they wish, but at the end of the day if we are going to have a referendum bill, it has to be fair and transparent. No political party in the Scottish Parliament should be able to rig a referendum question. [

Interruption

.]

The Presiding Officer:

I call Patrick Harvie. [

Interruption

.] Order, please!

Photo of Patrick Harvie Patrick Harvie Green

Thank you, Presiding Officer. I could not hear you call me the first time for the sound of the demands for the end of partisanship in the chamber, which were ringing in all our ears.

I wish that the bill was not being seen as a partisan issue. Framework legislation on referendums is something that we should be able to agree on. I assure Mike Rumbles that I have listened to the arguments, not only on this aspect of the bill but on all aspects of the bill. I hope that those who have engaged actively in the committee process would recognise that, from the start of the bill process, I have publicly urged the cabinet secretary to give ground and to respect the independence of the commission. He has given some ground.

There are three relevant paragraphs in the Electoral Commission briefing that we have all received. There have been calls for an end to partisanship, but using the rhetoric of “rigging the rules”, “manipulation” and “the mask of nationalism”, which is the language of performative partisanship, does not help. The three paragraphs—[

Interruption

.]

I have been accused of not listening to others—perhaps other members ought to be listening. The briefing contains three key paragraphs, the first of which says:

“the Electoral Commission is concerned to ensure 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”.

If we had not achieved a position that ensures that the Parliament will be able to access that advice, I would not be recommending to my colleagues that they vote in favour of the bill. We have achieved that position.

Photo of Patrick Harvie Patrick Harvie Green

I will in a moment.

Some people are choosing to interpret what they like about one or other of the paragraphs. The second paragraph says

“we are satisfied that the Government amendments on the question assessment process will enable Parliament to seek our advice whenever it wishes to do so, and the Commission will be able to put our views directly before Parliament.”

The third paragraph says:

“we continue to be of the view that should a future referendum on Scottish independence be brought forward, the Commission should be required to reassess the question”.

That can happen: under the bill, as amended by the Government, that requirement can be imposed by the Scottish Parliament. It will be for the Scottish Parliament to make that determination at any time when a bill is brought before it to establish a specific referendum.

Photo of Patrick Harvie Patrick Harvie Green

I indicated that I would give way to Mike Rumbles. If there is time, I will come to Daniel Johnson afterwards.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

The Electoral Commission said that

“the Commission should be required” by the bill

“to reassess the question regardless of whether it will take place within the ‘validity period’”.

I think that Patrick Harvie is incorrect. According to the bill, if such a referendum came forward during the current session of Parliament, it would still fall under the validity period.

Photo of Patrick Harvie Patrick Harvie Green

I draw Mike Rumbles’s attention to the paragraph as it is written:

“However, we continue to be of the view that should a future referendum on Scottish independence be brought forward, the Commission should be required to reassess the question”.

It does not say that that should be in the bill. Any referendum that is established will be established by a subsequent bill—by a piece of legislation that the Parliament will be able to vote on. The Parliament’s ability to make that requirement of the Electoral Commission will be unchanged.

We should recognise that the commission is satisfied with the changes that have been made to the bill. Simply to delete whole sections on which the commission’s concerns have been satisfied would be more worthy of words such as “manipulation” than are the actions that others have used such words for.

Photo of Daniel Johnson Daniel Johnson Labour

With the greatest of respect, there is a difference between the words “can” and “must”. Either we believe that the Electoral Commission is an important part of this process as an arbiter of fairness, or we do not. If we believe that it is, there must be a requirement that it acts as such an arbiter.

Furthermore, this boils down to whether, if a question is tested once and deemed to be valid, it is valid for all time and in perpetuity. Patrick Harvie argues that the context of a question is of no interest and no import whatsoever, and that cannot be right. Culture changes, understanding changes and context changes, and when they do, the question changes. That is why a question would have to be retested, regardless of whether it had been tested before by the Electoral Commission. That is what is at stake. I would be grateful if Patrick Harvie could respond on that point.

Photo of Patrick Harvie Patrick Harvie Green

I think that if Daniel Johnson is using phrases such as “in perpetuity” or “for all time”, he might be misreading what is in front of us. I do not think that that is being proposed.

The proposal is that it will be for this Parliament, in passing legislation that establishes any specific future referendum, to decide whether it wishes to require that commitment. It will still be within our power, or the power of any subsequent Parliament, to do so.

I am satisfied, as the commission is, with the changes that have been made. I fear that some people—perhaps predictably—are turning the bill into a proxy for issues that are way beyond framework legislation for referendums in general. I will oppose Mr Tomkins’s amendment.

Photo of Michael Russell Michael Russell Scottish National Party

I want to take some of the heat out of this. I said at the start that it has been divisive, and it remains divisive, so I want to stick to the facts of the matter.

Patrick Harvie is right that it is entirely possible for the third paragraph of the section on question testing in the Electoral Commission’s briefing to be used in the legislation to allow that test. The question arises about what the commission asked to happen and what has happened. I have moved substantially on all the issues; there is no doubt about that.

If we start at the beginning, at stage 1 the committee asked me to do things for stage 2. We entered into discussion and we made proposals, and the Electoral Commission suggested further changes to those proposals that we then accepted. All the proposals have been accepted.

On the issue of whether a question should always be tested, the point about “in perpetuity” is a misreading, to put it as kindly as I can, of what the legislation says. The legislation means that, within a single parliamentary term, the question can continue to be valid during that term; that is all it means.

Mr Rumbles is also wrong to say that a question is still valid. There is no question that is still valid in Scotland, because no question has been passed in the current parliamentary term. There is no valid existing question. Should there be a recommendation to use the same question again—

Photo of Michael Russell Michael Russell Scottish National Party

Let me make this point; it is really important. Should there be a recommendation to use the same question again, the Parliament will have the right to say to the Electoral Commission that it should be tested, and it will be able to be built into existing legislation. There has been considerable movement forward.

I will not react to some of the over-the-top remarks that were made by Mr Tomkins. This is a serious bill, with serious intent. In my view, the only small area of difference is around whether a question would continue to have validity in a single parliamentary term—that is the issue.

Photo of Michael Russell Michael Russell Scottish National Party

No—I have heard Mr Rumbles’s arguments. We are at the stage of making a decision on whether that point is worth this decision, or whether—in actual fact—the commonsense understanding is that language does not change, and that meaning does not change, in the period of four or five years. To suggest that they do is—I am afraid—to exaggerate beyond anything that I could accept. As such, I will press my amendments.

Amendment 6 agreed to.

Amendment 7 moved—[Michael Russell]—and agreed to.

Amendment 3 moved—[Adam Tomkins].

The Presiding Officer:

I remind members that, if amendment 3 is agreed to, I cannot call amendment 8. The question is, that amendment 3 be agreed to. Are we agreed?

Members:

No.

There will be a division.

Division number 3 Referendums (Scotland) Bill: Stage 3

Aye: 54 MSPs

No: 67 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 54, Against 67, Abstentions 0.

Amendment 3 disagreed to.

Amendments 8 to 10 moved—[Michael Russell]—and agreed to.

We turn to group 3, which is on the power to change the date of a referendum if there is a United Kingdom election on the same date. Amendment 22, in the name of the cabinet secretary, is the only amendment in the group.

Photo of Michael Russell Michael Russell Scottish National Party

I hope that this amendment will steer us into calmer waters. During the discussion at stage 2 on Adam Tomkins’s amendment 80, which identified issues around there being two polls on the same day, I undertook to discuss ways of avoiding such a situation. Mr Tomkins subsequently agreed to withdraw his amendment. In line with that undertaking, Mr Tomkins and I met and discussed ways in which we could avoid two polls—one of which would be outwith the control of the Scottish Parliament—falling on the same day. Amendment 22 gives effect to the outcome of those discussions.

If, for whatever reason, a poll is set for the same day that has been set by this Parliament as the date of a referendum, in the first instance, I would expect this Parliament to consider whether there is a need to change the date of the referendum. However, there is a slight possibility that a situation may arise where this Parliament is not in a position to make such a decision: that is, if there is an early Westminster general election, the date of such a poll may be set with little notice. Therefore, this amendment allows for the Presiding Officer to delay the date of a referendum by up to six weeks if the Parliament is either dissolved or in recess and cannot, for whatever reason, be recalled to make a decision. The Presiding Officer will, following consultation with the Electoral Commission, have the power to appoint by statement a new date for the referendum that is no later than six weeks after the original date.

Members will appreciate that the need to use the power is very unlikely to arise. However, I brought forward the amendment to address the concerns that were expressed by members about the risk of two polls falling on the same day. Taken together, the options mean that there is no reason why the date of a referendum should fall on the same day as another national poll unless—this is important—there is a positive decision by this Parliament for that to take place. I hope that members will agree that amendment 22 addresses the concerns that were expressed by the Parliament.

I move amendment 22.

Photo of Adam Tomkins Adam Tomkins Conservative

I am satisfied with amendment 22. There is no “however”.

Photo of Michael Russell Michael Russell Scottish National Party

I am delighted to hear the word “satisfied” used.

Amendment 22 agreed to.

The Presiding Officer:

Amendment 4, in the name of the cabinet secretary, is in a group on its own.

Photo of Michael Russell Michael Russell Scottish National Party

During the stage 2 proceedings on 27 November, James Kelly agreed not to press amendments 108 and 109, which would have required the Electoral Commission to consult the Equality and Human Rights Commission and to include its representations in its report on the conduct of a referendum. Mr Kelly’s decision was probably due to concerns around requiring consultation of only one particular body rather than a range of bodies. I would have had no objection to Mr Kelly’s proposed amendment 108 had it said that the Electoral Commission was expected or required to consult a range of bodies. In keeping with that view, I have brought forward amendment 4 to require the Electoral Commission, when drafting its report, to consult a range of bodies. We considered whether a specific list of bodies or individuals to consult would be appropriate but, since there could be a referendum on any subject, it is not possible to produce a definitive list. Therefore, I have deliberately left the Electoral Commission with flexibility to consult those bodies that it thinks might have an interest in a particular referendum.

However, it is already normal practice for the Electoral Commission to consult widely when drafting a report on any electoral event. My amendment simply gives statutory effect to something that already happens in practice. I hope that members will agree that, when the Electoral Commission is drafting its report, consultation with the relevant persons is appropriate and that, therefore, they will support the amendment.

I move amendment 4.

Amendment 4 agreed to.

The Presiding Officer:

Amendment 11, in the name of Adam Tomkins, is grouped with amendment 12.

Photo of Adam Tomkins Adam Tomkins Conservative

As we have heard, this bill is forward facing. It is framework legislation for referendums to be held in the future in Scotland. As introduced, section 37 would give ministers broad powers to amend the bill in the future—by order or regulation—in order to take into account developments elsewhere in electoral law.

The Finance and Constitution Committee recognised that, for it to be modified in that way in the future, the bill needed a degree of flexibility and dynamism. At the same time, in order that we have effective and robust parliamentary scrutiny of those order-making powers, Parliament’s interests needed to be more fully safeguarded than they were in the bill as introduced. Unlike its position with regard to question testing, the Government has been constructive in engaging with Opposition members on that question.

Amendments 11 and 12 have been prepared in co-operation with the Government; I thank the cabinet secretary and his officials for that. The amendments do not prohibit ministers from making future modifications—by secondary instruments—to provisions of this legislation, but they ensure that, in that process, Parliament’s interests, as an effective and robust scrutineer of Government policy, are protected.

I move amendment 11.

Photo of Michael Russell Michael Russell Scottish National Party

I welcome amendments 11 and 12. As Mr Tomkins said, I gave an undertaking to discuss with him how we might widen the range of bodies that should be consulted. Amendments 11 and 12 put what is normal practice on to a statutory footing. Changes to electoral legislation are already shared widely with the electoral community. The Government welcomes comments from anyone involved in elections and, now, referendums.

However, just because a body or individual is not included in the formal consultation, it does not mean that they have not had the opportunity to contribute at an earlier stage of the process. The formal consultation takes place once the regulations are available in draft form, which occurs at the end of the consultation process, before regulations are laid.

Amendments 11 and 12 address the issue that was raised at stage 2 and do so to the satisfaction of the member who raised them. Therefore, I encourage members to support them.

Amendment 11 agreed to.

Amendment 12 moved—[Adam Tomkins]—and agreed to.

The Presiding Officer:

Group 6 is on the consultation on the role of referendums in the democratic process. Amendment 23, in the name of Patrick Harvie, is the only amendment in the group.

Photo of Patrick Harvie Patrick Harvie Green

I lodged amendment 23 with the intention of airing some issues for debate, rather than pressing it to a vote. I want to make that point clear at the outset.

In among the sound and fury of some of the issues that we have disagreed on, there have occasionally been some interesting and deeper debates about challenges to our democratic process and some of the questions that cannot reasonably be fully resolved in this bill. Overwhelmingly, the evidence has been in favour of the idea of a framework bill for referendums, but it is clear that that is not sufficient as a vehicle to address some of the wider and deeper questions about the state of our democracy.

We also have two pieces of legislation on the subject of elections going through the Parliament at the same time. They are necessary pieces of legislation, but are not adequate to address those deeper questions. Some of the questions came up in, for example, the amendments on false statements that I moved during stage 2 in the committee. We know that it is a criminal offence to make false statements about a candidate during an election, but that restriction and requirement for honesty during the electoral process and in campaigning does not apply to the issues in an election; nor does it apply to the issues in a referendum. The offence of making false statements about candidates has no equivalent in relation to referendums.

I understand the reasons why the proposals that I made at stage 2 were not supported by the committee or the Government. The questions require deeper thought. Some of the contributions that Adam Tomkins made at stage 2 explained why false statements about candidates may once have been more relevant than they are now, as the focus on individual candidates and local campaigning was much more prominent in previous generations, compared with today’s focus on national issues and figures.

There were also discussions about the regulation of online and offline activity and campaigning. Even though we have seen some progress in this area—we will debate the matter later—we must recognise that how we regulate online campaigning is based on models that were designed for the needs of the previous century. We do not yet have answers to a lot of these questions.

As well as that, there is the interaction of the different forms of democracy that operate in Scotland. We have representative democracy—we are here within a representative democratic chamber—and we also have direct democracy in the shape of referendums. The story of the last few years of turmoil in the UK has, in some ways, been about the conflict between direct and representative democracy and about what happens when those two systems clash. I am pleased to say that we are also now exploring greater use of deliberative democracy through the use of citizens’ assemblies. There are questions yet to be resolved about how we expect representative, direct and deliberative democratic processes to interact and what their relative roles will be.

I have lodged this amendment to give the Government an opportunity to reflect on what it thinks should be the vehicle for consideration of these issues. Frankly, I am not fixated on whether there should be a consultation, a committee enquiry, a piece of work through the Scottish Law Commission, or discussions with the Electoral Commission, but there needs to be some vehicle for debating the wider issues. There are fundamental vulnerabilities to our democratic processes in the 21st century that have not been, and cannot be, addressed by the bill. I am keen to hear the views of the Government and other members on how we go about addressing the wider questions that cannot be resolved in the bill.

I move amendment 23.

Photo of Michael Russell Michael Russell Scottish National Party

One of the positive aspects of the bill and its outcomes has been some of the debate that arose in committee about what our democracy should be doing and how we should move forward in legislating for, without restricting or discouraging, participation in our democracy.

Mr Tomkins has also raised those issues, asking useful questions about what referendums would be for; how that would fit with other developments such as, as Mr Harvie suggested, a citizens assembly and direct, deliberative democracy; and how, as a Parliament and parliamentarians, we might properly consider those matters, reflect upon them and move them forward. I am very sympathetic to that and I am grateful to Patrick Harvie for lodging amendment 23 to at least raise the issue within the context of the bill and see how we could move forward.

I will say a word or two in a moment about some of the detail of amendment 23 to point out its difficulties. However, during the general election that has just taken place, there was clearly documented activity of a leave activist encouraging online advertising, in support of parties, that was designed to split the anti-Tory vote. In other words, it was false-flag campaigning. That will be very hard to regulate, but it is there and it is happening now. Some of the issues that we have considered on digital imprints, which we will consider again shortly, reflect an aspect that we need to talk about.

Above it all, however, is the use of falsehood and false news. Above it all, is saying things that are demonstrably untrue and designed to undermine the democratic process and to make points that deflect people from considering real and serious issues. We must consider how that will affect our democracy. The Scottish Law Commission has been undertaking a review of electoral law, including assessing whether electoral law is modern, simple and fit for purpose. That is not the entire remit for this area, but it is a start. That report is due in early 2020. It would seem to me inevitable and immensely desirable that committees of this Parliament should look at that report. It will be for the Parliamentary committees, but they might want to look at it in a wider context and consult on that report as the start of a process in which they ask how we can tackle some of these issues.

The present electoral law that deals with false statements about candidates is used, but it is no longer adequate or fit for purpose, because there are other issues that have arisen out of it. We understand where that came from, but what we might do next on what we might call the frontier of electoral law, given the changes that we see taking place, is very important indeed. I am therefore very happy to encourage a process in this Parliament—and support it in any way that I can—that takes those issues on and begins to move them forward. That process would also ask, as amendment 23 suggests, about the role of referendums; the issues for citizens’ assemblies and how those interact with this Parliament and the use of referendums; the regulation of campaigning and using social media and online media; and criminal penalties and the effect of false campaigning on the validity of a referendum result. All those matters need to be looked at. If we can find a process to do that, it will be supported.

We must also be aware that we must not do anything to narrow or restrict democratic participation, or to make elections harder to run. For example, amendment 23 suggests that consultations should be started within three months of royal assent for the legislation, but that would probably be far too tight a timescale and we would need to have a longer period. On amendment 23’s suggestion of laying a copy of any consultation before the Parliament, again, that is perhaps too restrictive and a parliamentary committee might want to recommend legislation of some sort or another, so there would be consultation anyway.

I am keen to help and I support talking about amendment 23’s proposals further and coming to conclusions after looking at the evidence and ensuring that we understand what we need to do. I hope that Mr Harvie recognises that, and I can see signs of assent coming from other parts of the chamber. Actively supporting such scrutiny is important. I understand that Mr Harvie does not intend to pursue amendment 23, but that will be not the end but the start of the process. I can give him that assurance.

Photo of Patrick Harvie Patrick Harvie Green

It is probably the case that at the start of devolution and the Scottish Parliament, just over 20 years ago, the general view might have been that the democratic process was generally a reserved matter. We had not yet legislated on local elections, we did not have the power to legislate in relation to Scottish Parliament elections and “referendum” was not yet the mot du jour, shall we say. Clearly, we are now at the point at which this Parliament has responsibility, which it has gained incrementally, for the democratic process and its robustness and fairness. It is also clear now that there are severe threats to that democratic process. We could be at the point at which we start to see our democratic process go even further down the rabbit hole of untruth and conspiracy theories, with not only the lack of transparency in online campaigning, but data harvesting and manipulation that is either illegal or unethical and which greatly enhances the power of those in our electoral process who have money and the will to hide where they get their money from.

We are all aware of threats of international manipulation and attacks against our democratic process. We could be at the point at which we see our democratic process continue the spiral downward, away from the transparent and accountable method of giving power to the public that it is supposed to be—or we could start to take responsibility for those challenges and recognise that we do not yet have answers to those fundamental questions.

I hope that every political party will recognise, not just during the implementation of the legislation that we are introducing, but in the period of time that we have to consider what should be in our 2021 manifestos, that a major overhaul is required in our democratic processes if they are going to be robust, resilient and fair in the future. I will seek leave to withdraw amendment 23, but I hope that all political parties will actively engage in those questions that have not yet been defined, let alone answered.

Amendment 23, by agreement, withdrawn.

The Presiding Officer:

Group 7 is on referendum expenses. Amendment 5, in the name of the cabinet secretary, is the only amendment in the group.

Photo of Michael Russell Michael Russell Scottish National Party

During stage 2 on 27 November, when we discussed excluding the additional costs associated with an individual’s disability from campaigners’ expenditure limits—amendments which were agreed to—Patrick Harvie asked if I had considered dealing with the issue of translations into other languages in the same way as translations for the purpose of disability. In response, I undertook to look at the issue. I have now considered Patrick Harvie’s suggestion and my officials have discussed it with the Electoral Commission, which is responsible for monitoring campaign expenditure. I am pleased to acknowledge that Patrick Harvie has raised a valid issue, which is now being attended to.

I have lodged amendment 5, which will exclude from campaigners’ expenditure limits any reasonable expenditure associated with the translation of referendum materials into languages other than English. I emphasise that we are talking only about the costs reasonably attributable to the actual translation, not the entire cost of creating, printing and distributing such material in paper or electronic form, as those costs would apply to any materials.

My aim in lodging the amendment is to make referendum material more accessible to those whose main language is not English. An individual not using English, for whatever reason, should not be a limiting factor if they want to take part in a referendum debate. The amendment is intended to address any concern that campaigners might have that the cost of providing translated material may result in exceeding their expenditure limits. I hope that members will agree that we should make every effort to involve all members of our communities in any referendum debate and that they will therefore support amendment 5.

I move amendment 5.

Photo of Patrick Harvie Patrick Harvie Green

I appreciate the fact that the Government has taken forward that suggestion. All of us recognise that having accessible information from campaigners in the range of different languages that are spoken in our communities is an important part of enabling everyone to participate in the democratic process. Given that we are, I hope, about to pass other legislation expanding the franchise and ensuring that the right to vote is based on residency, not citizenship, a great many more people will be able to participate in the democratic process. Many of them will not have English as their first language. It will be important that all political campaigns by parties and in referendums ensure that information is available that allows and empowers everyone to participate.

Amendment 5 agreed to.

The Presiding Officer:

Group 8 is on restrictions on publications. Amendment 13, in the name of Adam Tomkins, is grouped with amendments 14 and 15.

Photo of Adam Tomkins Adam Tomkins Conservative

Group 8 is concerned with what are informally known as the rules on purdah. As the law stands, for the last 28 days—four weeks—of any referendum campaign, the Government is prohibited from publishing general information about the referendum, information that deals with any of the issues raised by the referendum question, or information that puts any arguments for or against any outcome in the referendum or that is designed to encourage voting in the referendum.

The idea of having such purdah rules is well established now in our electoral practices, but we took evidence in the Finance and Constitution Committee that the relevant period for which purdah applies—the last four weeks of the campaign—is too short and should be lengthened. We also took evidence that, in lengthening the purdah period from the last four weeks to the whole of the regulated referendum period, which is 10 weeks, we should narrow the scope of the purdah rules.

Therefore, the force of the amendments in the group is both to lengthen and to thin the rules of purdah so that the Government would be prevented in the last 28 days from providing general information about the referendum and information that is designed to encourage voting in the referendum, and it would be prevented for the whole 10 weeks from providing other information that deals with issues that are raised by the referendum question or from putting any arguments for or against any referendum outcome.

That modest redesign of the rules of purdah was supported by a range of witnesses who gave evidence on the bill to the Finance and Constitution Committee at stage 1, including Alan Renwick of the constitution unit at University College London, who said that given that, as we all know, campaigns begin well before the purdah period,

“the rules do not prevent potentially influential government interventions in the campaign.”

The Electoral Commission supported Dr Renwick’s view, pointing out that, whereas referendum campaigners must work within the statutory spending limits, Government and public authorities may spend

“potentially significant amounts of public money promoting their preferred outcome as close as four weeks before polling day.”

The Electoral Commission has recommended that purdah should apply during the whole of the referendum period—that is to say, for 10 weeks rather than merely four weeks.

In short, amendments 13, 14 and 15 extend the length of the purdah period from four weeks to 10 weeks but narrow its scope, excluding from that extended 10-week period information that simply provides general information about the referendum or is designed to encourage voting in the referendum.

I move amendment 13.

Photo of Michael Russell Michael Russell Scottish National Party

It is a feature of debates about electoral regulation, particularly about referenda, that Oppositions will seek to restrict purdah and Governments will seek to maintain the present situation. I call in evidence on that David Lidington during the debate on the European Union Referendum Bill, who was defending the Government against an attempt by all the Opposition parties to restrict purdah. He described the provisions in the Political Parties, Elections and Referendums Act 2000, which is still current and which we observe, as

“a very wide-ranging statutory prohibition on Government activity.”—[

Official Report

,

House of Commons

, 16 June 2015; vol 597, c 232.]

That is what it is and I would resist further statutory prohibition on Government activity. The amendments would place tight restrictions on ministers for a period approaching three months in the run-up to a referendum. Pre-poll restrictions are accepted—they are effective and they are operating. As I said at stage 2, ministers, civil servants and public bodies expect those restrictions and understand them. However, extending them further, even if they are slightly slimmed down from Mr Tomkins’s original proposal at stage 2, would significantly inhibit the Government from conducting normal day-to-day business on behalf of citizens.

There was differing evidence on the matter at stage 1. The Finance and Constitution Committee acknowledged that uncertainty by deciding not to recommend an extended pre-poll period and it voted against the extension at stage 2. That indicates that, whatever the intention of the extension, there is not widespread support for it.

The 2016 EU referendum and the 2014 independence referendum had arguments cutting across a wide range of policy fields. Restricting all those areas for more than the accepted and legislated-for period would cause significant issues for the ordinary people of Scotland. Extending the restrictions in the way suggested by the amendments would still catch a wide range of materials. The word “publish” covers the spoken and written word, and all forms of communication including social media. That would constrain the publication of consultations and ministerial participation in public events that might in any way be seen as associated with the referendum topic.

I accept that it is hard to find the right balance. Everyone accepts that Governments should not use public funds or actively campaign at referendums. Politicians can campaign, but not Governments. Equally, as the “Fifth Report of the Committee on Standards in Public Life”, which led to the UK’s 2000 act on referendums, acknowledged, it is

“extraordinarily difficult, if not impossible, for the government of the day to offer purely objective and factual information in the course of a referendum campaign”.

The report recommended that

“the government of the day in future referendums should, as a government, remain neutral and should not distribute at public expense literature, even purportedly ‘factual’ literature, setting out or otherwise promoting its case.”

We could debate that matter, but it is not in the regulations. I understand the concerns. I acknowledge that the issue will always be a current subject, on which there will always be debate, but those amendments do not take us any further forward. They would be difficult to operate, and it is hard to see what might replace them.

At stage 1, Professor Justin Fisher said that this was

“an extraordinarily difficult area on which to legislate.”

I do not think that Mr Tomkins’s amendments solve it. I ask him not to press amendments 13 to 15. However, we will continue to acknowledge that there should be vigilance in the use of purdah—and Parliament will be as vigilant as everybody else.

Photo of Patrick Harvie Patrick Harvie Green

If Scotland is involved in a further constitutional referendum—as I very much hope we will be and as Adam Tomkins very much hopes we will not—it will be important that the two Governments, UK and Scottish, are on a level playing field in terms of any restrictions on their abilities. When he winds up on this group of amendments, can Adam Tomkins tell us whether he proposes a legal mechanism that will place the same restriction on the UK Government’s activity as he proposes for the Scottish Government, or does his amendment risk creating an inequality of arms?

The Presiding Officer:

I ask Adam Tomkins to wind up and press his amendment.

Photo of Adam Tomkins Adam Tomkins Conservative

I am not in the business of proposing amendments that are outwith the competence of this Parliament, which imposing legislative restrictions on Her Majesty’s people’s Government would be.

The Government’s response to the amendments is disappointing. This is the third set of amendments on which the Government is seeking to resist changes. Mr Russell painted a picture of this being the Government versus the Opposition, with the Opposition seeking to promote the amendments and the Government seeking to stop them. It has nothing to do with Opposition and Government. It has to do with respecting the views of those who understand national and international best practice on the running, holding and conduct of referendums in this country.

On the Electoral Commission’s statutory role of testing questions, the Government has resisted. On the Gould principle, which I thought all parties agreed to, the Government has resisted. Now it has done so on purdah. The Government is not resisting amendments that I dreamed up but amendments that seek to put into effect the evidence that the Finance and Constitution Committee heard from the best available experts and from the Electoral Commission, whose job it is to ensure that the interests of voters are put first and foremost in the design and delivery of all referendums and elections in this country.

It is regrettable that, for the third successive occasion this afternoon, the Government is seeking to resist not Opposition amendments but amendments that are designed to make the bill reflect international best practice. This is sub-par legislation, and it is disappointing that the cabinet secretary wants that for his legacy.

The Presiding Officer:

The question is, that amendment 13 be agreed to. Are we agreed?

Members:

No.

Division number 4 Referendums (Scotland) Bill: Stage 3

Aye: 56 MSPs

No: 68 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 56, Against 68, Abstentions 0.

Amendment 13 disagreed to.

Amendments 14 and 15 not moved.

Group 9 is on details to appear on published referendum material. Amendment 16, in the name of the cabinet secretary, is grouped with amendments 17 and 17A.

Photo of Michael Russell Michael Russell Scottish National Party

During the stage 2 debate on 27 November, when we were discussing the requirement to include imprints on referendum material and what exemptions for personal opinions are appropriate, Patrick Harvie asked

“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?”—[

Official Report

,

Finance and Constitution Committee

, 27 November 2019; c 63.]

That was an important point, which mirrors concerns that many of us have. I offered to discuss the issue further with Mr Harvie, and following those helpful discussions I lodged amendments 16 and 17. They might not go as far as Patrick Harvie hoped that they would go—indeed, amendment 17A, which he has lodged, shows that that is the case—but I think that they provide a workable way forward.

The intention behind amendments 16 and 17 is to ensure that the personal opinion exemption from the requirement to include a name and address imprint on campaign materials does not extend to permitted participant campaigners, responsible persons for campaign bodies or those who would be liable for corporate offences under the bill, such as directors and similar officers of companies of registered permitted participant campaigners.

The amendments will remove the opportunity for such individuals to post referendum material without an imprint, under the guise of that being their personal opinion, unless the posting cannot reasonably be regarded as being done with a view to promoting or procuring a particular referendum outcome.

I have limited the restriction to officers who would be liable for corporate offences, because people who work for a campaign organisation might not necessarily identify with the views of that organisation; they might simply be doing their jobs. That is more likely to be the case with less senior members of staff than with senior officers, and I do not think that it would be appropriate to restrict them in the same way. It is likely that senior officers will hold views that are in line with the organisation’s campaigning stance.

As I said during the stage 2 debate, control of online campaigning is a difficult area that we are trying to get right. We have to balance the need to regulate referendum activity appropriately without inhibiting the ability of members of the general public to discuss the issues that are involved, which would stifle debate and not benefit anybody.

Patrick Harvie and I have discussed his amendment 17A. The Electoral Commission’s view—and we have, of course, leaned heavily on the Electoral Commission’s view in these matters—is that Mr Harvie’s proposal is, unfortunately, “unworkable”. Campaigners are not required to report details of donations below £7,500 to the commission, so it is unclear how the commission would be able to enforce the imprint rules for people who donated between £500 and £7,500, given that it would not be aware that those individuals were required to include an imprint on their communications.

The practicalities aside, I am concerned that such restrictions around the use of social media might act as a disincentive for people to donate to campaigners, or, if they had donated, to take an active part in the referendum debate.

This is an evolving issue. It is very likely that a future Government will have to make further changes in the area, potentially using the power to amend the framework to respond to an Electoral Commission recommendation, for example.

Having said that, I commend to members my amendments 16 and 17, as a reasonable and proportionate response to the online campaign environment as it exists at this time. I ask Mr Harvie not to move amendment 17A, on the ground that, although I am certain that it is well intentioned and I agree with much of what Mr Harvie intends, his proposed approach would not work in practice.

I move amendment 16.

Photo of Patrick Harvie Patrick Harvie Green

The cabinet secretary is right to say that this is an evolving area. I am certain that the provisions that are agreed to in the bill, whatever they are, will not be the last word on the matter.

It is also a complicated area.

The concepts that we use even to talk about how we regulate online campaigning are themselves inadequate. The idea of a digital imprint almost implies that we think that every piece of online campaigning is just the digital equivalent of a piece of paper that is posted through a letterbox or stuck up on a lamppost.

Online campaigning involves a far more sophisticated set of tools and requires a far more sophisticated model of regulation and enforcement, which the bill will not achieve. Indeed, even if amendment 17A is agreed to, the bill will not get close to achieving that; there is a lot more work to do.

During the stage 2 discussions, I genuinely found it difficult to understand a reason in principle why an online publication should be subject to a lower level of regulation than applies to a physical publication. A single tweet or a Facebook post can have a dramatically bigger reach than an individual flyposting in their community or printing leaflets and putting them through letter boxes in their neighbourhood. Such campaigning requires people to say who they are, and I do not see a requirement for people to say who they are in online publications—and publications are what we are talking about—as an inhibitor of freedom of speech. People make the argument about freedom of speech, but simply being willing to say who you are does not inhibit freedom of speech. I see my proposal as inhibiting covert campaigning, which can be, and has been, an aspect of the manipulation of our democratic system that we should all be concerned about. My amendment 17A simply adds in a requirement that applies to those who have donated to campaigns, as it is clear that those whose money is being used to influence our democracy ought to be held to a higher standard of accountability than individuals who simply chat about the issues with their friends, whether online or offline.

I do not see a reason in principle why donors should be excluded. The provision may well be difficult to enforce, and it may well be that the Electoral Commission will not have the information that it needs to enforce it, but we do not make lawful things that we think are wrong simply because enforcement would be difficult. We should be setting an expectation of transparency and honesty in our electoral process, and an expectation that donors—those who use their money, rather than just their votes, energy, creativity or activism, to influence the political system—ought to be held to a reasonable standard and must at least say who they are when they put publications online.

I will move amendment 17A. I have no idea whether it will get support from anybody else in the chamber, but it is an important principle that needs to be asserted.

Photo of Michael Russell Michael Russell Scottish National Party

I respect Patrick Harvie’s view on the matter and I entirely agree with him that the financial factors should not be excluded in any way. I simply say to him that the information that will be required to implement the proposal in his amendment does not and will not exist in the hands of the Electoral Commission. Therefore, if amendment 17A is agreed to, although the provision will sit on the statute book, it cannot be operated. I do not think that we make good law if we put things on to the statute book that we cannot actually operate because we do not have the information to do so.

If the Electoral Commission comes forward with recommendations on these matters, as it intends to do, we will look at the recommendations and try to implement them. Regrettably, I will have to vote against amendment 17A, because what it proposes cannot be done.

Amendment 16 agreed to.

Amendment 17 moved—[Michael Russell].

Amendment 17A moved—[Patrick Harvie].

The Presiding Officer:

The question is, that amendment 17A be agreed to. Are we agreed?

Members:

No.

Division number 5 Referendums (Scotland) Bill: Stage 3

Aye: 32 MSPs

No: 61 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

Abstained: 30 MSPs

Abstaineds: A-Z by last name

The Presiding Officer:

The result of the division is: For 32, Against 61, Abstentions 30.

Amendment 17A disagreed to.

Amendment 17 agreed to.

Group 10 is on the investigatory powers of the Electoral Commission. Amendment 18, in the name of the cabinet secretary, is grouped with amendments 19 and 20.

Photo of Michael Russell Michael Russell Scottish National Party

I hope we are in the last stages—the canter towards the end of the amendments.

At stage 2, I lodged a number of amendments aimed at strengthening the Electoral Commission’s monitoring powers to gather information about campaign activity. The commission sought the strengthening of its power to obtain information so that it could deal with compliance issues in real time ahead of a referendum. Those amendments were agreed to by the Finance and Constitution Committee. The further amendments in this group refine those earlier amendments in response to comments from the commission.

Amendment 18 adds an additional category to the categories of individuals or bodies to which the Electoral Commission can give a disclosure notice. The new category covers individuals or organisations that have not registered as permitted participant campaigners but which the commission has reasonable grounds to believe have published referendum material without an imprint of name and address details. Taken together with the proposal in amendment 20, a disclosure notice can require such individuals or organisations to provide the commission with information or an explanation.

Amendment 19 provides a minor clarification that a disclosure notice can cover relevant donations and regulated loan or credit transactions received or entered into before an individual or body became a permitted participant. That will ensure that an individual or body that is not yet a permitted participant cannot avoid scrutiny by undertaking regulated referendum campaign activity before registering. The provision will enable the Electoral Commission to confirm both that donations and transactions are correctly reported and whether an individual or body has carried out inappropriate campaign activity before registering as a permitted participant.

The amendments add to those agreed to at stage 2 and make certain aspects of the policy clearer. Taken together, they represent a further strengthening of the Electoral Commission’s monitoring powers over the campaign rules to gather information that could lead to a formal investigation.

I move amendment 18.

Amendment 18 agreed to.

Amendments 19 and 20 moved—[Michael Russell]—and agreed to.

The Presiding Officer:

Group 11—the final group—is on the long title. Amendment 24, in the name of the cabinet secretary, is grouped with amendment 25.

Photo of Michael Russell Michael Russell Scottish National Party

These technical amendments are a result of the changes to section 1 at stage 2. The removal of the option of providing for a future referendum by regulations meant that the long title of the bill no longer reflected its contents. The words about “other referendums” are no longer needed, so amendments 24 and 25 adjust the long title accordingly and reflect changes to the bill that have already been agreed to.

Amendments 24 and 25 moved—[Michael Russell]—and agreed to.

The Presiding Officer:

That ends consideration of amendments.

At this stage, as members might be aware, I am required under standing orders to decide whether any provision of the bill relates to a protected subject matter—that is, a matter affecting the Scottish parliamentary elections or franchise. In my view, no provision of the Referendums (Scotland) Bill relates to a protected subject matter. That means it does not require a supermajority in order to be passed at stage 3. We will move shortly to the debate and decision time will be brought forward. Decision time will be in roughly one hour’s time—merry Christmas.

Photo of Linda Fabiani Linda Fabiani Scottish National Party

Parliament is suspended for five minutes. Members should be back in their seats for 3:30.

15:24 Meeting suspended.

15:30 On resuming—