Committee
Finance and Constitution Committee 27 November 2019
27 Nov 2019 · S5 · Finance and Constitution Committee
Item of business
Referendums (Scotland) Bill: Stage 2
The second fairly significant area of contention that is generated by the bill is to do with the Electoral Commission’s role in testing the intelligibility of questions, in particular the provision in section 3(7), which bypasses that function of the Electoral Commission for what are, in essence, repeat referendums. The committee took strong evidence on the matter at stage 1, including from the Electoral Commission, which said: “The Commission 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.” I do not think that anyone apart from the cabinet secretary demurred from that evidence from the Electoral Commission. When the committee reached its conclusions on the matter, we unanimously 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.” It is unfortunate that the evidence that is before us for stage 2 indicates that no such agreement has been reached. The cabinet secretary wrote to the convener last week about the matter and said only that the Electoral Commission “is aware of” the amendments in his name in this group; he did not say that the Electoral Commission had agreed to them. Indeed, the Electoral Commission said, in its briefing for stage 2: “The Electoral Commission’s primary concern is 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, regardless of whether a question has been asked within that parliamentary session.” That is the Electoral Commission’s view; it is as strong and unambiguous as it was at stage 1. It seems to me that the committee has three options available to it at stage 2. The first is not to amend the relevant provisions in section 3 and for those to go on to stage 3 unamended, so that the Electoral Commission will effectively be bypassed with regard to any referendum question that has previously been used. That is what will happen if we do not amend those provisions today. The second option is to accept the cabinet secretary’s amendments, which do not have—at least, we have not been told that they have—the agreement of the Electoral Commission. The cabinet secretary is shaking his head. I am happy to take an intervention from him.
In the same item of business
The Convener (Bruce Crawford)
SNP
Good morning and welcome to the 27th meeting in 2019 of the Finance and Constitution Committee. I remind members to switch off their mobiles, or at least to ...
The Convener
SNP
Amendment 76, in the name of Adam Tomkins, is grouped with amendments 77, 1 to 3, 78, 18, 23, 29, 42, 49 and 61.
Adam Tomkins (Glasgow) (Con)
Con
Good morning, everyone. The first group of amendments concerns the power in section 1 of the bill to provide for referendums. Section 1 as drafted is extraor...
The Cabinet Secretary for Government Business and Constitutional Relations (Michael Russell)
SNP
It is always my approach to a bill—members of the committee know this, because we have been in this position before—to seek to enhance it and to reach agreem...
Patrick Harvie (Glasgow) (Green)
Green
We have debated the question of whether specific legislation should always be required for referendums in the future, and I was willing, with an open mind, t...
Adam Tomkins
Con
I welcome the cabinet secretary’s support for amendment 1. In light of that, and in the expectation that the committee will vote for amendment 1, I will seek...
The Convener
SNP
Amendment 79, in the name of Adam Tomkins, is grouped with amendments 90 to 92.
Adam Tomkins
Con
The second fairly significant area of contention that is generated by the bill is to do with the Electoral Commission’s role in testing the intelligibility o...
Michael Russell
SNP
On page 2, the Electoral Commission’s briefing says: “The Commission had a constructive meeting with the Cabinet Secretary to discuss Amendments 90, 91 and ...
Adam Tomkins
Con
I welcome the fact that there has clearly been constructive engagement between your office and the Electoral Commission. I wish it were otherwise, but unfort...
Michael Russell
SNP
We have heard from Adam Tomkins about why he believes that my amendments should be rejected and his amendment should be accepted. I have the opposite point o...
Adam Tomkins
Con
I am grateful to the minister for the clarity of his remarks. It might well be that there are some things about referendums that we do not yet do well in th...
Michael Russell
SNP
I will disagree with your definition, using the words of the Electoral Commission. When giving evidence to the committee at stage 1, the Electoral Commission...
Adam Tomkins
Con
On a point of information, convener.
The Convener
SNP
You will have an opportunity to make the point when you wind up.
Michael Russell
SNP
As I said, I believe that the amendments meet exactly the requirements of the committee. I am asking the committee to support the amendments with the proviso...
John Mason (Glasgow Shettleston) (SNP)
SNP
I disagree with Adam Tomkins’s comments about there being only one course available to the committee. That is obviously a political statement, and the realit...
Adam Tomkins
Con
Will the member take an intervention on that point?
John Mason
SNP
Yes.
Adam Tomkins
Con
There is no amendment on the table that would allow the Electoral Commission to bind Parliament. The Electoral Commission’s role under PPERA is to independen...
John Mason
SNP
That is exactly my point—the Electoral Commission should not be able to bind Parliament, but the suggestion with amendment 79 is, almost, that we try to get ...
Adam Tomkins
Con
No.
John Mason
SNP
Well, that appears to be the case. Amendments 90 to 92 would put a time limit on how often a referendum question has to be assessed, which is a reasonable c...
Alex Rowley (Mid Scotland and Fife) (Lab)
Lab
The cabinet secretary has failed to reach agreement with the Electoral Commission. I still do not know why he is so insistent on this point and has not been ...
Patrick Harvie
Green
I am sorry that the tone of the debate so far has been needlessly confrontational. Adam Tomkins said that what the cabinet secretary is offering is very near...
Murdo Fraser (Mid Scotland and Fife) (Con)
Con
When the committee produced its stage 1 report, it unanimously resolved that the Scottish Government and the Electoral Commission must come to an agreement o...
Angela Constance (Almond Valley) (SNP)
SNP
Later in stage 2, when we come to group 17, we will debate the pros and cons of placing a duty on ministers to follow the advice of the Electoral Commission....
Gordon MacDonald (Edinburgh Pentlands) (SNP)
SNP
A key policy in the Labour Party manifesto for the forthcoming election is the holding of a referendum on the Brexit deal within six months. Given the timesc...
Alexander Burnett (Aberdeenshire West) (Con)
Con
I heard what Patrick Harvie said. Given the amendment to section 1, the Parliament could add a role for the Electoral Commission in analysing the question. D...
Patrick Harvie
Green
It is clear to all of us that legislation can always be amended. This Parliament cannot pass legislation that is unamendable by a subsequent Parliament. If t...