REFERENDUM (SCOTLAND) BILL COMMITTEE AGENDA. 3rd Meeting, 2012 (Session 4) Thursday 8 November 2012

Transcription

1 REF/S4/12/3/A REFERENDUM (SCOTLAND) BILL COMMITTEE AGENDA 3rd Meeting, 2012 (Session 4) Thursday 8 November 2012 The Committee will meet at 9.45 am in Committee Room Declaration of interests: Bill Kidd will be invited to declare any relevant interests. 2. Subordinate legislation: The Committee will take evidence on the Scotland Act 1998 (Modification of Schedule 5) Order 2013 [draft] from Professor Aileen McHarg, Professor of Public Law, University of Strathclyde; Alan Trench, Honorary Senior Research Fellow, Constitution Unit, University College London and Honorary Fellow in the School of Social and Public Science, University of Edinburgh; and then from Rt Hon Michael Moore MP, Secretary of State for Scotland; Laura Crawforth, Head of Constitutional Policy, and Chris Flatt, Deputy Director - Corporate and Constitution, Scotland Office. Andrew Mylne Clerk to the Referendum (Scotland) Bill Committee Room T2.60 The Scottish Parliament Edinburgh Tel: andrew.mylne@scottish.parliament.uk

2 REF/S4/12/3/A The papers for this meeting are as follows Agenda item 2 SPICe background paper Memorandum by Alan Trench REF/S4/12/3/1 REF/S4/12/3/2 Professor Aileen McHarg She has referred the Committee to her blog post on the section 30 order on the Scottish Constitutional Futures Forum website: /articleType/ArticleView/articleId/340/Aileen-McHarg-The-Referendum- Memorandum-of-Agreement-and-Draft-Section-30-Order.aspx Oral evidence by Secretary of State The Secretary of State for Scotland gave evidence last week to the House of Commons Scottish Affairs Committee which should be available am Tuesday 6 November:

3 Scottish Parliament Information Centre logo REF/S4/12/3/1 THE DRAFT SCOTLAND ACT 1998 (MODIFICATION OF SCHEDULE 5) ORDER 2013 This paper was prepared for the Referendum (Scotland) Bill Committee s consideration of the draft Scotland Act 1998 (Modification of Schedule 5) Order. The order is a draft statutory instrument which was laid before the Scottish Parliament and the two Houses of the UK Parliament on 22 October It is subject to the affirmative procedure, which means that it cannot be made as an Order in Council until it has received the approval by resolution of the House of Commons, the House of Lords and the Scottish Parliament. As with other statutory instruments, it cannot be amended. THE EDINBURGH AGREEMENT In Edinburgh on 15 October 2012, the Prime Minister and the First Minister signed the Agreement between the United Kingdom Government and the Scottish Government on a referendum on independence for Scotland 1. The Agreement, known as the Edinburgh Agreement, was the culmination of negotiations between the two governments on the holding of a referendum on independence for Scotland. In it, the governments agreed to work together on a referendum that would: have a clear legal base be legislated for by the Scottish Parliament be conducted so as to command the confidence of parliaments, governments and the people deliver a fair test and a decisive expression of the views of the people of Scotland and a result that everyone will respect. The two governments also agreed that an Order in Council under section 30 of the Scotland Act 1998 should be laid in the United Kingdom and Scottish Parliaments to allow a single-question referendum on Scottish independence to be held before the end of The governments assert that the Order will put it beyond doubt that the Scottish Parliament can legislate for a referendum on independence for Scotland. A draft Order accompanied the Agreement along with a Memorandum of Agreement setting out the details of the Agreement. 1 The Edinburgh Agreement was also signed by the Secretary of State for Scotland and the Deputy First Minister.

4 The Agreement went on to state that it would be for the Scottish Government to introduce a Bill in the Scottish Parliament which would set out: the date of the referendum the franchise the wording of the question rules on campaign financing other rules for the conduct of the referendum. The Agreement also confirmed that the referendum would be informed by consultation and independent expert advice. The accompanying Memorandum states that the referendum rules will be based on the provisions of Part 7 of the Political Parties, Elections and Referendums Act 2000 (PPERA), which covers the rules on campaign finance, referendum regulation, oversight and the conduct of referendums organised by the UK Government. SECTION 30 ORDER There had been a long-standing dispute between the Scottish and UK governments on whether the Scottish Parliament was competent to legislate for a referendum relating to independence. The debate over the Scottish Parliament s competence to legislate for a referendum on Scottish independence began in 2007 when the new minority SNP Scottish Government launched its National Conversation (Scottish Government 2007). The new government accepted that there needed to be due consideration of [ ] how a referendum could be initiated by the Scottish Parliament (Scottish Executive 2007 p. vii). The National Conversation, which ran from August 2007 to November 2009, culminated in a draft Referendum Bill which included proposed ballot papers for a two question referendum. The Scottish Government believed that it would be within the legislative competence of the Scottish Parliament to hold a referendum seeking the Scottish electorate s agreement that Scottish Ministers open negotiations with the Government of the United Kingdom on terms for Scottish independence. After it concluded its National Conversation, the Scottish Government produced a further draft Referendum Bill for consultation (Scottish Government 2010). This paper included draft ballot papers which set out to, consult people in Scotland on proposals to seek the transfer of more powers to the Parliament. In its 2012 consultation, launched after the 2011 Scottish Parliament elections which produced a majority SNP Government, the Scottish Government (2012a p. 4-5) stated that, A wide range of opinion has been expressed about whether or not the Scottish Parliament has the power to hold a referendum consulting the Scottish people about independence. The Scottish Government has previously published a referendum question asking whether the powers of the Scottish Parliament should be extended to enable independence to be achieved. That question was carefully phrased to 2

5 comply with the requirements of the Scotland Act Much independent legal opinion supports the Scottish Government s view. What is beyond any question is the ability of the Scottish Parliament to legislate for a referendum about changes to the powers of the Scottish Parliament within the framework of devolution. Legislation to hold a referendum on devolution max, for example, is clearly within the existing powers of the Scottish Parliament. In its 2012 consultation, the Scotland Office set out its legal concerns over any referendum which the Scottish Government could hold, The Scottish Government is aware of the limits of its powers. It acknowledged those limits in Since the Scottish National Party s success in May 2011, the Scottish Government has provided no new explanation of how it would deliver its manifesto commitment to hold a referendum, despite the limits to its power. In the absence of new information, the UK Government has considered the proposals put forward by the Scottish Government in February Those proposals cannot be legally delivered by the Scottish Parliament. The Scottish Parliament only has power to legislate on matters that are devolved and has no power to legislate on matters that are reserved to the UK Parliament. The Union of the Kingdoms of Scotland and England is one of those reserved matters. In our view legislation for a referendum brought forward by the Scottish Government would likely be challenged in court and the Scottish Government would lose. The UK Government does not believe that it is in Scotland s interests to have Scotland s constitutional future decided in court. The referendum must be legally watertight there must be no doubt that it is lawful. That certainty can only be provided by legislation involving the UK Parliament; although as this paper sets out, this could be done in different ways and the UK Government could devolve power to the Scottish Parliament to enable it to deliver a fair and decisive referendum. While the Scottish Government has not conceded that it does not already have the power to conduct such a referendum, it has agreed with the UK Government that the section 30 Order will put beyond dispute that the Parliament will have such competence. The effect of article 3 of the draft Order will be to insert new paragraph 5A into Part 1 of Schedule 5 (reserved matters) to the Scotland Act 1998 and, by so doing, to provide an exception to the reservation of the constitution under paragraph 1 so that that paragraph does not reserve a referendum on the independence of Scotland (5A(1)). In other words, this modification makes it possible for the Scottish Parliament to legislate for a referendum in Scotland concerning the independence of Scotland from the rest of the United Kingdom otherwise reserved under Part 1 of Schedule 5. However, the draft Order qualifies this modification of Schedule 5 by placing three conditions on the holding of an independence referendum. These are that the referendum: must not take place on the date of any other referendum which the Scottish Parliament may legislate for (5A(2)) must take place before the end of 2014 (5A(3)), and 3

6 must have only one ballot paper which gives the voter the choice between two responses (5A(4)). It may be noted that the draft Order is not concerned with the outcome of the referendum. The Memorandum, however, concludes by committing the two governments to work together constructively on the outcome of a referendum which they expect to be legal and fair and which will produce a decisive outcome which will be respected. DRAFT ORDER As previously stated, the Scotland Act 1998 (Modification of Schedule 5) Order 2013, was laid before the Scottish Parliament and the two Houses of the UK Parliament on 22 October It is a statutory instrument which is subject to the affirmative procedure, which means that it cannot be made until it has received the approval by resolution of the House of Commons, the House of Lords and the Scottish Parliament. As with other statutory instruments, it cannot be amended. Date of the Referendum Article 3 of the draft Order specifies an end date for the holding the referendum, namely 31 December This is in line with the Scottish Government s preferred timescale, set out in its 2012 consultation paper (Scottish Government 2012a), to hold the referendum in Autumn It will be for the Scottish Parliament to decide on the specific date, as long as it is not held on the same day as any other referendum which the Scottish Parliament has the powers to legislate for. This restriction would prevent the Scottish Government from, for example, legislating separately for a referendum on devo-max on the same day. The Order does not indicate a day of the week on which the poll should be held. Neither is there is any mention in PPERA that a specific day may, or may not, be used for polls. It is customary, however, to hold polls, including referendums, on a Thursday but there is no requirement to do so and some UK by-elections have been held on a Tuesday. In its consultation on the referendum (Scottish Government 2012a p. 20) the Scottish Government had asked, What are your views on the idea that the referendum could be held on a Saturday or on other ways which would make voting easier? The analysis of consultation responses found that, Of those respondents who commented on the issue of Saturday voting, 46% broadly agreed with holding the referendum on a Saturday and 32% did not; the remainder had unclear or mixed views. [ ] Those who broadly supported the idea of a Saturday vote frequently said that they would support the idea if it increased voter turnout. Those who were opposed to Saturday voting suggested that voter turnout might actually be lower on a Saturday [ ] 4

7 Question Some respondents were not opposed in principle to the idea of voting on a Saturday, but felt that it would not be appropriate to introduce this new practice for the first time in the referendum. (Scottish Government 2012b p.4) It may be worth highlighting differences in the wording around the question between the section 30 Order and the Memorandum of Agreement. While paragraph 6 of the Memorandum states that the Order enables the Scottish Parliament to legislate for a referendum with one question on independence. Article 3 of the draft Order actually states that, There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses. It may be, however, that the wording of the Order is intended to avoid a presumption that there will be an actual question, but rather keep open the option of presenting voters with a statement or pair of propositions to choose from, for example, Scotland should be an independent country - agree/disagree. That said, there is a reference, in passing, in article 4(2) of the Order to, the question in the referendum. In line with Part 7 of PPERA, the two governments have agreed that the actual wording of the question, and any statement on the proposed ballot paper, will be reviewed by the Electoral Commission. The Scottish Government will, therefore, refer its proposed question to the Commission which will report on the intelligibility of the question. The Commission s report will then be laid before the Scottish Parliament and the Scottish Government will respond to that report and to the Commission s recommendations. Referendum campaign regulation Regarding the rules for the referendum campaign which will be included in the Bill, the two governments have agreed that those rules should ensure that the referendum is fair and commands the confidence of both sides of the debate. They also agreed that the rules should be based on the referendum rules set out in Part 7 of PPERA. In addition, article 4(1) of the draft Order directly applies certain provisions of PPERA to the independence referendum (i.e. referendum campaign broadcasts and the sending of mail-shots free of charge) as those provisions would not otherwise apply to a referendum legislated for by an act of the Scottish Parliament as the Scottish Parliament has no competence to apply them itself (because broadcasting and the Royal Mail are reserved matters). Referendum campaign broadcasts According to the provisions of PPERA, only referendum campaign broadcasts made by, or on behalf of, the designated lead campaign organisations can be broadcast. The Communications Act 2003 provides that the regulator Ofcom must require those broadcasters which it licences to observe any rules set up relating to referendum campaign broadcasts. 5

8 Article 4(1)(a) of the draft Order will apply the provisions in section 127 of PPERA, relating to referendum campaign broadcasts, to the Scottish referendum. The role of Ofcom, the BBC and the Electoral Commission in the independence referendum will, therefore, be the same as their roles in relation to referendums set up under PPERA. Article 4(3) of the draft Order will disapply some of the provisions in section 127 of PPERA, which article 4(1)(a) would otherwise apply to the Scottish Referendum. Under the provisions of article 4(3)(a) section 112 of PPERA, which relates to notional referendum expenses, will not apply to the Scottish Referendum campaign broadcasts. So the value of any property, services and facilities provided for the use or benefit of an individual or body campaigning in a referendum, either free of charge or at a substantial discount, will not be treated as referendum expenses with respect to campaign broadcasts. Under the provisions of article 4(3)(b), paragraph 1 of Schedule 13 to PPERA, which relate to expenses which qualify as campaign expenditure with regard to broadcasts, including agency fees, design costs and other costs incurred in preparing or producing the broadcasts, will also not apply to the Scottish Referendum campaign broadcasts. Under the provisions of article 4(3)(c) of the draft Order the provisions of paragraph 18 of Schedule 12 to the Communications Act 2003, will not apply to the Scottish Referendum campaign broadcasts. This means that the Welsh broadcasting authority does not have to ensure the Scottish referendum broadcasts are included in their services. Free-of-charge mail-shot Designated campaign organisations, under provisions in paragraph 1 of Schedule 12 to PPERA, are entitled to one free mail-shot to every elector or household. The service is provided by the Royal Mail and funded by the UK Parliament through the Consolidated Fund. Article 4(1) of the draft Order includes provisions to apply this part of PPERA to the Scottish referendum. Article 4(4) of the draft Order sets out that, in this instance, the Royal Mail will recover the costs from the Scottish Ministers. Designated organisations Under the provision of section 108 of PPERA, it is the responsibility of the Electoral Commission to designate permitted participants to whom assistance is available. However, article 4(2) of the draft Order provides that organisations to whom assistance is available will instead be designated in the Referendum Bill. OTHER ISSUES The Memorandum of Agreement covers a number of issues which are not set out in the draft Order. Oversight of the referendum Both governments have agreed that the referendum rules will take account of those bodies which have a role in Scottish elections, namely the Electoral Management Board and the Electoral Commission. The role of the Commission, with regard to this referendum, will be set out in the Bill. 6

9 The Electoral Commission is an independent body set up by the UK Parliament. It regulates party and election finance, sets standards for well-run elections and is responsible for the conduct and regulation of referendums held under PPERA. The Local Electoral Administration (Scotland) Act 2011 established the Electoral Management Board for Scotland (EMB). The Board is responsible for co-ordinating the administration of local government elections in Scotland. Electoral Commission and the Electoral Management Board Both governments agreed on the importance of the referendum being overseen impartially by bodies which can command the confidence of both the Yes and No campaigners. Given the responsibilities which PPERA assigns to the Electoral Commission with regard to UK initiated referendums, and its experience with the 2011 Welsh and UK referendums, both governments agreed that the Electoral Commission should fulfil these responsibilities for the Scottish referendum. This contrasts with the earlier position of the Scottish Government which was to establish a specific Scottish Referendum Commission. The Electoral Commission s referendum responsibilities include: registration of campaigners designating lead campaign organisations regulating campaign spending and donations publishing guidance for permitted participants promoting public awareness (this is not a duty under PPERA) reporting on the referendum process. Although PPERA gives responsibility for the conduct of the poll and for the announcement of the result to the Commission, the Scottish Government has proposed that these roles should instead be given to the Electoral Management Board. This is in line with that body s statutory responsibilities with regard to Scottish local elections, which it carried out for the first time in May One further statutory responsibility of the Electoral Commission, which it will not be expected to carry out for the Scottish referendum, is the giving of grants to lead campaign organisations. The Commission will not be required to carry out this function because the Scottish Government does not plan to grant any public money to the lead campaign organisations. Campaign finance Both governments recognise that the issue of campaign funding will be an important one for campaigners, the Electoral Commission and for the people of Scotland. They, therefore, believe that it is vital that the rules are fair and provide a level playing field. The Scottish Government s forthcoming Referendum Bill will set the spending limits for the regulated period before the referendum poll, with both governments agreeing that the PPERA rules and standards will be the basis for setting those limits. 7

10 The Scottish Government has proposed that the regulated period for the referendum will be 16 weeks. It may be noted that PPERA does not specify a length of time for the regulated period. For comparison, the 1997 Scottish devolution referendum had a regulated period of 119 days (17 weeks). The limits for sub-uk referendums are usually set by the Secretary of State, by secondary legislation, using a mechanism set out in PPERA. In setting the limits, the Secretary of State would consult the Electoral Commission, although the UK Government is not statutorily obliged to accept the Commission s recommendations. If, however, the Secretary of State does not accept the Commission s suggestions on limits, then he or she is required to lay a statement before Parliament explaining why. The Memorandum of Agreement states that, in deciding the spending limits, the Scottish Government will take into account the responses to its consultation, which had proposed the following spending limits for different organisations: The Scottish Government has also stated that it will consult with both existing campaigning bodies, which came into existence after the 2012 consultation closed, and will have regard to the Electoral Commission s views on limits. The Scottish Government states that it will then set out its proposed spending limits, and the evidence base for them, before the Referendum Bill is considered by the Parliament. The Government also confirms that the Policy Memorandum which will accompany the Bill, will, if necessary, explain any departure from the Commission s advice on the limits. As donations to registered political parties are already regulated under the provisions in Part 4 of PPERA, the two governments see no need to include any further rules for such parties with regard to the independence referendum. However, the Referendum Bill will expand the rules to cover other permitted participants, including minor parties not presently covered by PPERA. In line with PPERA these rules will not allow these participants to accept donations of over 500 from anonymous donors or donations from individuals or organisations from outside the UK. Franchise The two governments have agreed that the franchise for the referendum, which will be set out in the Bill, will be based on the existing franchise for the Scottish Parliament and Scottish local elections. In addition, the Memorandum acknowledges that the Scottish Government has been consulting on the possible extension of that franchise to those aged 16 and 17 years who are eligible to be registered on the electoral register (Scottish Government 2012a p. 22). The draft Order is silent on any extension of the franchise and it will be the decision of the 8

11 Scottish Government whether to include an extension which would allow some, or all, 16 and 17-year olds to vote in In her statement on the Edinburgh Agreement, on 23 October 2012, the Deputy First Minister, Nicola Sturgeon, told the Scottish Parliament that As the First Minister announced on Saturday, the Scottish Government will also introduce a paving bill to ensure that all 16 and 17-year-olds can register for and vote in the referendum, should that be the franchise agreed by this Parliament. (Official Report 23 October 2012 col 12406) Ensuring impartiality of broadcasters It has been acknowledged that, during the run-up to the referendum, the impartiality of broadcast coverage is especially important and broadcasters, Ofcom and the Electoral Commission will discuss the best way to achieve this. There already exists the Broadcasters' Liaison Group, which is chaired by Ric Bailey, the BBC s Chief Adviser on Politics. The Group comprises broadcasters who make airtime available to registered political parties to help them promote their manifestos to the electorate. In addition the Group have produced Referendum Production Guidelines, which are available on its website. Government activity during the 28 days before the referendum Section 125 of PPERA sets out the restrictions which apply to Ministers and public bodies, in the 28 day period preceding referendums. This 28 day period is treated in a way similar to the 28 day period prior to elections, when Ministers and public bodies refrain from publishing material which could have a bearing on the election. The Referendum Bill will contain details of the restricted behaviours which the Scottish Government would expect from Scottish Ministers and devolved public bodies. The UK Government has also committed to abide by any rules which the Scottish Government introduce for that 28 day period. SOURCES Broadcasters' Liaison Group Broadcasters' Liaison Group Referendum Production Guidelines Electoral Commission Future of Scotland HM Government and Scottish Government (2012) Agreement between the United Kingdom Government and the Scottish Government on a referendum on independence for Scotland, Edinburgh, 15 October

12 Political Parties, Elections and Referendums Act Scotland Act 1998 (Modification of Schedule 5) Order 2013: draft Scotland Act 1998 (Modification of Schedule 5) Order 2013: draft explanatory memorandum Scotland Act 1998 (Modification of Schedule 5) Order 2013: policy note ote.pdf Scotland Office (2012) Scotland s constitutional future. A consultation on facilitating a legal, fair and decisive referendum on whether Scotland should leave the United Kingdom Scottish Executive (2007) Choosing Scotland's future: a National Conversation: independence and responsibility in the modern world Scottish Government (2009) Your Scotland your voice: a national conversation Scottish Government (2010) Scotland's Future: Draft Referendum (Scotland) Bill Consultation Paper Scottish Government (2012a) Your Scotland: your referendum: a consultation document Scottish Government (2012b) Your Scotland, your referendum: an analysis of consultation responses Scottish Government (2012) Scottish Government details process for referendum News release 3 July Scottish Parliament (2012) Scottish Parliament Official Report 23 October

13 REF/S4/12/3/2 Memorandum by Alan Trench REFERENDUM (SCOTLAND) BILL COMMITTEE (Honorary Fellow, School of Social and Political Science, University of Edinburgh; solicitor of the Supreme Court of Judicature of England and Wales (non-practising); author, Devolution Matters blog.) The Edinburgh Agreement and the section 30 order for the independence referendum 1. This memorandum is written to help the Referendum Bill (Scotland) Committee in considering the section 30 order made by the UK Secretary of State for Scotland, in order to facilitate the referendum on Scottish independence. The order was agreed as part of the Edinburgh Agreement between UK and Scottish Governments, on 15 October 2012 and now requires the approval of both Houses of the UK Parliament as well as of the Scottish Parliament before it can come into effect. 2. I welcome the making of the section 30 order, which I consider the right way to enable the Scottish Parliament which has a mandate to call a referendum, following the SNP s election victory in May 2011 to do so. In my view, the Parliament did not have legislative power to legislate for a referendum on the subject of independence without some extension of the Parliament s legislative competence, due to reservations of The Union of the Kingdoms of Scotland and England and the Parliament of the United Kingdom in Part 1 of Schedule 5 to the Scotland Act A referendum touching on those matters would have been beyond the Parliament s legislative competence, whether it was supposedly advisory or not. The effect of any referendum on independence, given the requirement under the 1998 Act for the courts to consider the effect [of the provision] in all the circumstances under section 29(3) of the Act (a form of what lawyers know as a pith and substance test), makes this clear in my view. The reading-down provision in section 101, requiring the courts to read a provision as narrowly as is required for [the provision] to be within competence, if such a reading is possible, does not provide material assistance in such a case. This view was shared by the House of Commons Scottish Affairs Committee, reflecting the view of many of the expert witnesses who gave evidence to that committee The procedure for extending the Parliament s legislative competence under section 30 of the 1998 Act has always seemed to me the appropriate means to enable the Scottish Parliament to call an independence referendum, given that it had the mandate but not the powers to do so. I believe I was the first person publicly to suggest this way forward, in an article entitled We need ceasefire in Scots cold war in the Scotsman on 27 June I understood at that time that such an approach 1 House of Commons Scottish Affairs Committee The Referendum on Separation for Scotland: making the process legal Second Report of Session , HC 542 (London: The Stationery Office, 2012). 2 Available at

14 was being considered within each government, but not being discussed between them, and wanted to help the process of agreeing such an order proceed with due despatch. 4. Extending the Parliament s legislative competence by means of section 30 orders has been a relatively widely used procedure, which formed part of the wider pattern of flexibility in managing the division of powers between devolved and UK tiers of government that characterised the early years of devolution. 3 Eight orders were made amending Schedule 5 between 1999 and 2006 (though none have been made since then). 4 Another two orders have been made using the same power and procedure to amend Schedule 4 to the Act, which protects certain specified enactments from modification by Holyrood. 5 The most recent of those, from 2009, dealt with limitation periods for claims for damages for slopping out in prisons arising under the Human Rights Act 1998 following the Somerville judgment, and again formed part of an agreement between the Scottish and UK Governments to resolve an intricate legal problem Section 30 orders amending Schedule 5 both extended the scope of both reserved and devolved (non-reserved) matters, and were part of the flexibility regarding the boundary of devolution that formed part of the first phase of devolution. They have generally been uncontroversial and largely technical in nature, certainly as far as parliamentary consideration of them has been concerned. (In this respect, they may be contrasted with the controversy that attended the making of a number of socalled legislative competence orders for the National Assembly for Wales, under section 95 of the Government of Wales Act 2006, for which a superficially similar procedure applied.) They have not been used on their own for significant additions to devolved responsibilities, such as operation of the Scotrail franchise, which partly because of its greater complexity required primary legislation at Westminster, the Railways Act 2005 (itself approved at Holyrood by a legislative consent motion), as well as amendment of Schedule 5 using the section 30(2) mechanism. 7 Rather, they have been used for relatively minor alterations to the limits of reserved competence, 6. The UK and Scottish Governments have set different standards for a Scottish independence referendum. The UK Government has insisted a referendum be legal, clear, fair and decisive. The Scottish Government has accepted those criteria, but also sought to ensure that a referendum was made in Scotland. Given the limited devolved powers to call an independence referendum, a referendum 3 See further chapters 3 and 8, The framework of devolution: the formal structure of devolved power and Washing dirty linen in private: the processes of intergovernmental relations and the resolution of disputes in A. Trench (ed.) Devolution and Power in the United Kingdom (Manchester: Manchester University Press, 2007). 4 They are UK Statutory Instruments SI 1999 no (also amending Schedule 4), SI 2000 no. 3252, SI 2001 no. 1456, SI 2002 no. 1629, SI 2004 no. 3329, SI 2005 no. 865, SI 2005 no. 866 and SI 2006 no UK Statutory Instruments SI 2000 No and SI 2009 No A joint statement by the UK Secretary of State and Scottish First Minister can be found at 7 The Scotland Act 1998 (Modifications of Schedule 5) Order 2004, SI 2004 No

15 could never have been wholly made in Scotland. The section 30 order agreed between the two governments on 15 October makes provision to devolve power to the Scottish Parliament to hold a referendum. This will enable the referendum to satisfy the criterion of being both legal and made in Scotland. It contains limited and appropriate provisions on the holding of the referendum, which will also ensure that the outcome can be accepted as clear, fair and decisive. 7. The main way by which clarity, fairness and decisiveness will be established other than by the vote itself is through the involvement of the Electoral Commission in regulating the referendum and advising on the referendum question. The proposal made by the Scottish Government for an ad hoc commission to regulate the referendum may have arisen because there was no power for the Electoral Commission to undertake this, absent a section 30 order. 8 This was also a serious source of concern to the UK Government as well as many Westminster Parliamentarians, however. The involvement of the Electoral Commission clearly reassures the UK Government and others (within and outwith Scotland) of the fairness of the process. The Commission s involvement also provides reassurance about the wording of the referendum question, through its role in advising on the intelligibility of the question, in accordance with section 104 of the Political Parties, Elections and Referendums Act Members of the committee will be aware that the Commission s advice about intelligibility goes beyond simply considering whether the words used are comprehensible by an ordinary voter or not, but extends to considering whether the question... present[s] the options to voters clearly, simply and neutrally The Electoral Commission is not mentioned in the section 30 order as such, but rather in the intergovernmental agreement which incorporated a draft of the order. This does raise a wider question about the extent to which the Parliament will indeed be master of the referendum bill. While it would be open to the Parliament to pass a bill that was not in compliance with what the UK and Scottish Governments have agreed, doing so would raise numerous risks. These include not only breaking the terms of that agreement, but also risking the authority of the referendum and its outcome. That seems to me an extremely powerful reason for a referendum to be held in accordance with the agreement, and for the Electoral Commission s involvement. The consequences of a referendum whose outcome is not regarded as fair will be adverse, profound and long-term, whatever that outcome might be. 9. As the order means that the holding of a referendum will be within the powers of the Scottish Parliament, it falls to the Parliament to determine other matters relating to it, notably whether those aged under 18 on the polling day can vote. The issues 8 See Scottish Government Scotland s Future: Draft Referendum (Scotland) Bill Consultation Paper (Edinburgh: Scottish Government, 2010), particularly chapter 3. 9 See Electoral Commission Our approach to assessing the intelligibility of referendum questions, November Available at data/assets/pdf_file/0005/82625/referendum-questionstatement-final.pdf. See also the Commission s Referendum question assessment guidelines, November 2009, available at data/assets/pdf_file/0006/82626/referendum-questionguidelines-final.pdf 3

16 regarding whether such people should be able to vote will therefore be political and practical in nature, rather than legal. 10. However, as the powers of the Parliament are limited to legislating for Scotland (by section 29(2)(a) of the Scotland Act 1998), it would be impossible for those claiming Scottish birth, descent or other connection but who live outwith Scotland to vote in a referendum called by Holyrood in any event. Only those resident in Scotland will be able to vote as a result. 11. A further constraint is that the power to hold a referendum is valid only if the referendum held on or before 31 December There is no power to hold a referendum later than that date. There is no date before which a referendum may not be held, once the order is made. 12. A key provision of the agreement and the section 30 order is that it provides for only one question, relating to independence, to be put to voters at the referendum. It does this by requiring there to be only ballot paper and only one question on that ballot paper so it would be beyond the Parliament s competence either to require there to be two questions, or to hold two separate polls on the same day, using the same polling place and register of voters. (In my view, a referendum on options short of independence that did not affect the Union of Scotland and England would probably be within legislative competence, depending on the question asked.) 13. This limitation of choice has been a disappointment to many, as there is strong evidence that some form of enhanced devolution would be the preferred option of many (perhaps most) Scottish voters. There are major difficulties with including such a third option on the ballot for a decisive referendum, though on the level of mechanics these may not be insuperable. 10 Perhaps more serious is the lack of clarity or consensus about what such a third option might be, and finding a body to campaign for it. Regrettably, there is a conflict between a clear or decisive referendum in this instance, and one that enables the views of the people of Scotland to be fully reflected at the poll. In that regard, one can only note that the referendum is a blunt instrument for resolving such open-ended, and complex issues, for which the processes of representative democracy are in my view better suited. Alan Trench 6 November The best, if not only, way to do this would be that suggested by John Curtice; a gateway question asking whether Scotland should become an independent state or not, followed by a second question asking whether, if Scotland were to remain part of the UK, devolution should be extended. The questions would have to be put in that order to achieve clarity about voters intentions. 4