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Finance and Constitution Committee 27 November 2019

27 Nov 2019 · S5 · Finance and Constitution Committee

Item of business

Referendums (Scotland) Bill: Stage 2

Tomkins, Adam Con Glasgow Watch on SPTV

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 extraordinary, because it allows for referendums to be called either by the authority of an act of this Parliament, which would be by primary legislation, or by ministerial order or regulation, which would be by secondary legislation. There is no equivalent power in the Political Parties, Elections and Referendums Act 2000, which is the United Kingdom’s referendums legislation. The stage 1 evidence that the committee took from Dr Alan Renwick of the constitution unit at University College London was that there is no well-functioning parliamentary democracy that gives ministers blanket authority to call a referendum by secondary legislation. The committee unanimously recommended that section 1 be amended so that at least constitutional referendums must require primary legislation and that all other referendums ordinarily require primary legislation. I will speak not only to amendment 76, which is the lead amendment in this group, but principally to amendment 1. Amendment 1 omits section 1 from the bill, replacing it with a provision that would mean that any referendum to which this legislation applies would need to be triggered by an act of the Scottish Parliament. I note that the cabinet secretary now supports that amendment, which I very much welcome. Amendment 1 would mean that the bill would be identical to the equivalent UK legislation, PPERA, in that any referendum held on a devolved matter in Scotland to which this legislation applies would require an act of the Scottish Parliament to establish it. That is the clearest and simplest solution to the problem that section 1 as introduced poses. As I said, I very much welcome the Scottish Government’s apparent support for it. Amendments 76 and 77 are alternatives to amendment 1, in the event that the committee does not accept amendment 1. Amendment 76 would mean that any referendum on a constitutional matter would require an act of the Scottish Parliament. Amendment 77 would mean that any referendum on a moral issue would also require an act of the Scottish Parliament. In other words, no constitutional referendum and no referendum on a moral issue could be called by ministerial order or regulation. I do not intend to move those amendments, if committee members indicate that amendment 1 is likely to be accepted. Amendments 76 and 77 are lesser alternatives to amendment 1, and are not designed to be moved in addition to amendment 1 if that amendment is agreed to. I briefly turn to the other amendments in the group, which are all consequential on amendment 1. Amendments 2 and 3 are rival amendments to section 2. The cabinet secretary proposes to leave out section 2 entirely. I think that the understanding—he will be able to speak for himself in a moment, so he will correct me if I am wrong—is that section 2 becomes unnecessary or otiose if amendment 1 is accepted. I would happily support amendment 3. My amendment to section 2 simply omits from it the provision that would enable regulations under the provision to modify any enactment. The committee took evidence from the Law Society of Scotland that that aspect of section 2 as introduced is too broad and gives ministers too much power to amend primary legislation by secondary legislation, which is always something that we should be alive to. Again, however, I will not move amendment 2 if it is clear that the cabinet secretary will move amendment 3 and the committee will support it. I prefer amendment 3, which leaves out the entirety of section 2, to amendment 2, which leaves out only three words of it. As I said, all the other amendments in the group are consequential on amendment 1. Except for amendment 78, which is in my name, they are all in the name of the cabinet secretary. We will support his amendments. Amendment 78 is on one further aspect of the bill that requires to be amended in the event that the ministerial power to trigger referendums by regulations is removed from section 1. It simply omits the words “(including this Act)” from section 3(1)(a). That means that the provisions in section 3 on referendum questions would apply where “provision is made by or under an Act of the Scottish Parliament for the holding of a referendum”. We do not need the words “(including this Act)” in that sentence, because no referendum is to be held under this legislation. The bill does not contain provision for the holding of any referendums, so those words are not needed. The section would be neater, cleaner and more accurate if we were simply to omit those words; that is the force of amendment 78. I repeat that we would be happy to support all the other amendments in this group in the name of the cabinet secretary. I move amendment 76.

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Finance and Constitution Committee 27 November 2019

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