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Scotland's Future: Draft Referendum (Scotland) Bill Consultation Paper

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1 The Ballot Papers

Chapter Summary

  • While the Scottish Government's favoured policy is independence, it acknowledges that there is support within Scotland for a range of positions on increased responsibilities for the Scottish Parliament. In order to reflect this as fully as possible, the Scottish Government is consulting on a referendum which would put two questions to the people of Scotland: firstly a question about the extension of the powers and responsibilities to the Scottish Parliament short of independence, and secondly a question about whether the Scottish Parliament should also have its powers extended to enable independence to be achieved.
  • However, there is currently no consensus about what the further devolution option should be. The draft Bill therefore sets out two alternative versions for consideration.

1.1. Devolution was never intended to be a fixed arrangement. It was and is a process which should respond to political, economic and social circumstances over time. Devolved responsibilities have been increased on several occasions over the last decade, for example in relation to railways. Now, as the Scottish Parliament enters a second decade, it is clear that there is broad support for extending the Parliament's powers and responsibilities further. The Scottish Government therefore believes that options for extending those powers and responsibilities should be put before the people of Scotland in a referendum.

1.2. The Scottish Government believes that Scotland's future interests would be best served by it becoming an independent country and assuming all of the responsibilities and rights of a normal European state. Independence would bring responsibilities that could not be devolved within the UK, such as macroeconomic policy, full European representation and defence policy.

1.3. However, the Scottish Government acknowledges that there is support within Scotland for a range of other positions. Your Scotland, Your Voice therefore set out four possible scenarios for Scotland's future: the status quo, further devolution based on the recommendations of the Commission on Scottish Devolution (the "Calman" Commission), full devolution and independence.

1.4. Opinion polls confirm the broad support for giving the Scottish Parliament greater responsibilities. For example, an Ipsos MORI poll in November 2009 3 found that 66% of those questioned favoured the Scottish Parliament having increased powers, whether in terms of further devolution or independence, while only 32% favoured the status quo.

1.5. Another poll, by Angus Reid in December 2009 4 following the publication of Your Scotland, Your Voice, asked respondents which of the four scenarios for Scotland's future outlined in that publication they preferred. The poll found that 64% of respondents living in Scotland favoured increased powers, with 25% favouring independence, 22% favouring some additional powers along the lines of the Calman recommendations, and 17% favouring more additional powers, including full fiscal powers.

1.6. The recent Scottish Social Attitudes 5 survey put the percentage supporting further powers even higher, with 69% of those questioned favouring significantly more powers for the Scottish Parliament.

The Proposed Referendum

1.7. The draft Bill would provide the people of Scotland with the opportunity to vote on two proposals:

  • the first about an extension of the powers and responsibilities of the Scottish Parliament, short of independence;
  • the second about whether the Scottish Parliament should also have its powers extended to enable independence to be achieved.

1.8. The Scottish Government recognises that those who support further devolution do not have a consensus position. The draft Bill therefore sets out two versions of the first ballot paper:

  • the first version covering full devolution (sometimes called "devolution max") and involving devolution of a wide range of policy responsibilities, while leaving macroeconomic policy, defence and foreign affairs with the UK Parliament and Government; and
  • the second covering the proposals on the financing of the Scottish Parliament made by the Commission on Scottish Devolution (the "Calman" Commission).

1.9. These alternatives are considered below in greater detail. The proposed ballot papers are set out on pages 20-22.

First Ballot Paper

Version 1 - Full Devolution

1.10. Contributions to the National Conversation have indicated support for a range of proposals which reduce the matters reserved under the Scotland Act 1998. Under full devolution, the Scottish Parliament and Government would take on more responsibility for domestic matters and for raising, collecting and administering all (or the vast majority of) revenues in Scotland and the vast bulk of public spending. The UK Government and institutions would continue to have responsibility for matters such as macroeconomic policy and defence, but the Scottish Parliament and Government would have a greater range of measures available to them to support sustainable economic growth.

1.11. Version 1 of the first ballot paper asks voters whether the Scottish Parliament should have its powers extended so that it is fully responsible for laws, taxes and duties in Scotland, except for certain things which would remain the responsibility of the UK Parliament. Key issues which would continue to be the responsibility of the UK Parliament would include:

  • defence and foreign affairs;
  • financial regulation, monetary policy and the currency.

Version 2 - The "Calman" Financial Recommendations

1.12. The Commission on Scottish Devolution (the "Calman Commission"), chaired by Sir Kenneth Calman, published its final report 6 in June 2009. It made 63 recommendations in four categories: strengthening financial accountability; strengthening co-operation between the Scottish and UK Parliaments; strengthening the devolution settlement; and strengthening the Scottish Parliament. It made no recommendations in a number of important areas including economic issues, employment and company law, and foreign affairs.

1.13. The Scottish Government published its formal response to the Commission's recommendations on 9 November 2009 7. It supports many of the Commission's recommendations for additional devolution and strengthened co-operation. It has sought action by the UK Government to secure early implementation of those on which there is consensus, a position supported by the Scottish Parliament following a debate in December 2009 8. In the Scottish Government's view, however, the Commission's proposals for financial accountability are seriously flawed and fall far short of the fiscal responsibilities which Scotland needs to become a more successful country. That conclusion has been backed by a number of respected and independent economic commentators 9.

1.14. It is not clear whether any of the parties which supported the Commission will fully support the implementation of its recommendations. The UK Government published its proposals for taking forward some of the Commission's recommendations on 25 November 2009 10. The leader of the Conservative Party indicated in December 2009 that a Conservative government would set out its own proposals for implementation 11. The parties which took part in the Commission have, however, made clear their view that a referendum on the Calman proposals is not necessary.

1.15. The Scottish Government's view is also that the Commission's recommendations fall short of the increase in responsibilities that would normally be seen as requiring referendum consultation. Nevertheless, the Scottish Government notes that the proposal to give the Scottish Parliament tax-varying powers was put to voters as the second question in the 1997 devolution referendum. This resulted in the Scottish Parliament having the power to vary income tax by up to 3p in the pound. Given that the Calman recommendations include a proposal to give the Scottish Parliament responsibility for setting a Scottish rate of Income Tax, which could vary by up to 10p in the pound from the rate in the rest of the UK, the Scottish Government can see that there is an argument for including the Calman financial recommendations within a multi-option referendum.

1.16. Version 2 of the first ballot paper therefore sets out for consideration a proposed question which would ask voters whether the Scottish Parliament should have its financial responsibilities extended as recommended by the Calman Commission. Those additional responsibilities are:

  • responsibility to set a Scottish rate of Income Tax which could vary by up to 10p in the pound from the rate in the rest of the UK;
  • power to set the rates of Stamp Duty Land Tax and other minor taxes, and to introduce new taxes in Scotland with the agreement of the UK Parliament; and
  • limited power to borrow money.

QUESTION 1

What are your views on the proposed referendum which seeks the people's views on two proposals for extending the powers of the Scottish Parliament?

QUESTION 2

What do you think should be the first proposal in that referendum: full devolution (Version 1 of Ballot Paper 1), or the Calman-based option (Version 2 of Ballot Paper 1)?

Second Ballot Paper - Additional power to enable Scotland to become an independent country

1.17. Your Scotland, Your Voice sets out the range of issues for which the Government and Parliament of an independent Scotland would be responsible. They can be summarised as follows:

  • the economy, including decisions on the currency and the macroeconomic framework;
  • investment in education, enterprise and infrastructure, including transport and housing;
  • the environment, energy and climate change;
  • the taxation and benefits system;
  • the full range of public services, including benefits and health;
  • foreign affairs, defence and security matters. For example, Scotland would continue membership of the European Union, representing its own national interests in the same way as other member states, influencing directly the overall direction of European Union policy. An independent Scotland would also have full representation on other European and international bodies;
  • equality legislation and human rights; and
  • the constitution and government of Scotland, including Parliament, the courts and local government.

1.18. Independence would complete the responsibilities of the Scottish Parliament and Government while allowing existing structures and services - many of which are already devolved - to continue.

1.19. Her Majesty The Queen would remain as Head of State. The current parliamentary and political Union of Great Britain and Northern Ireland would become a monarchical and social Union - united kingdoms rather than a United Kingdom - maintaining a relationship forged in 1603 by the Union of the Crowns.

1.20. Within this relationship, a broad range of cultural, social and policy links would continue and it is likely that both an independent Scotland and the remainder of the UK would seek to maintain and build on a series of cross-border partnerships and services. As members of the European Union, both Scotland and the rest of the UK would enjoy full access to the other's markets and there would be freedom to travel and work in either country.

1.21. Scotland would continue to operate within the Sterling system until any decision to join the Euro by the people of Scotland in a referendum.

1.22. The Scottish Government proposes that any extension of the powers and responsibilities of the Scottish Parliament should include an additional power to enable Scotland to become an independent country. Ballot paper 2 contains a referendum proposal to that effect.

Voting Method for a Multi-option Referendum

1.23. There are a number of voting methods which could be used for a multi-option referendum. Many of the more complex methods have never been used in national elections or referendums, and none have been used in a comparable referendum. The Scottish Government has therefore considered two of the most easily understandable voting methods for which there have been successful precedents:

  • Method 1 - Preferential Voting (Alternative Vote) using a ballot paper with three options. Voters would have the chance to rank the options by putting a "1" by their first preference and a "2" by their second preference. If no option has an absolute majority of first-preference votes, the option with the lowest number of first-preference votes is eliminated and these ballots are redistributed to the remaining options according to the second preferences marked; and
  • Method 2 - Two ballot papers with two separate questions with results calculated for each using simple majority voting.

1.24. The approaches both have merits:

  • Method 1 - This should be familiar to voters as the system for local government elections. It would take into account second choices, and any option chosen by adding up the preferences would have the support of at least 50% of voters. However, it could be argued to be more difficult for voters to understand, and more complicated for those counting the votes.
  • Method 2 - The two-question system is a simple one both for voters to understand and for those conducting the count. It provides a definitive result and is in line with the approach taken in the 1997 Scottish devolution referendum 12.

1.25. The method adopted in the draft Bill is Method 2. As in the 1997 referendum, the questions would be on two separate, and differently coloured, ballot papers.

QUESTION 3

The Scottish Government proposes voting method 2 (two separate yes/no questions). What are your views on this?

The Referendum Proposals and Informing Voters

1.26. Scottish Parliament legislation must conform to the provisions of the Scotland Act 1998. The Scotland Act has in-built flexibility so that the Scottish Parliament's powers can be extended over time. The Scottish Parliament has a role in such processes, for example in relation to orders made under section 30 of the Act. It is therefore legitimate for a referendum held under an Act of the Scottish Parliament to ask the people questions related to an extension of its powers insofar as this is within the framework of the Scotland Act.

1.27. The wording of the proposals has also been developed with the UK Electoral Commission's guidelines on referendum questions in mind. Those guidelines state that a referendum question should present the options clearly, simply and neutrally, and should:

  • be easy to understand;
  • be to the point;
  • be unambiguous;
  • avoid encouraging voters to consider one response more favourably than another; and
  • avoid misleading voters.

1.28. The proposed ballot papers are set out on pages 20-22. To ensure that voters are fully informed about the proposals, an information leaflet would be sent to every household. This would be distinct from any material produced by those campaigning for a particular outcome in the referendum. This was the approach taken by the UK Government in the lead-up to the 1997 referendum about the Scottish Parliament.

QUESTION 4

What are your views on the wording and format of the ballot papers?

Timing of the Referendum

1.29. The date of the referendum will depend on the parliamentary progress of the Bill, and will ultimately be for the Scottish Parliament to decide. The Scottish Government will be seeking the agreement of the Parliament that the referendum should be held as soon as possible.

Referendum Results

1.30. The referendum will be advisory, in that it will have no legislative effect. It will not be subject to any minimum turnout requirement or approval threshold (where approval is required by a minimum percentage of registered voters). It is well established in the UK13 and across western Europe 14 that referendums should be decided by those who choose to vote on a simple majority basis. The 1997 Scottish devolution referendum was conducted on that basis.

1.31. The Venice Commission's 2005 report Referendums in Europe - An Analysis of the Legal Rules in European States notes that most European states do not set thresholds for referendums - either in terms of participation or approval - that have to be exceeded for referendum results to be valid. In 2006 the Venice Commission published a voluntary Code of Good Practice for Referendums setting out the views of this Council of Europe Commission on best practice for referendums. Article 7 of the Code explicitly states that minimum turnout requirements and abnormal majority thresholds are not advisable. In the Scottish Government's view this is the correct approach.

1.32. While the referendum will have no legal effect on the Union, the Scottish Government would expect the UK and Scottish Parliaments and the respective Governments to listen to the views of the Scottish people and act on them.

What Would Follow the Referendum

(a) A majority vote against both proposals

1.33. Those not in favour of either proposal for extension of the powers and responsibilities of the Scottish Parliament would vote "no/no". If that were the majority position neither proposal would be taken forward.

(b) A vote in favour of the first proposal only

1.34. The first proposal asks voters whether they agree that the powers and responsibilities of the Scottish Parliament should be extended so that the Parliament becomes responsible for a range of matters (either full responsibility for domestic matters as set out in the full devolution proposal or more responsibility for financial affairs as recommended by the Calman Commission).

1.35. If there is a majority vote in favour of this proposal, but not for proposal 2, it would be for the Scottish and UK Parliaments to take forward implementation. Depending on the devolution package agreed by the people, the transfer of powers could be achieved through Orders in Council under the Scotland Act 1998 (which require the assent of both Parliaments), through an Act of the Westminster Parliament (which under the "Sewel Convention" would also require the agreement of the Scottish Parliament as it would alter the functions of the Parliament and the Scottish Ministers), or through a combination of the two mechanisms.

1.36. The Scottish Government would expect the UK Government to work with it to bring forward proposals for implementation by the two Parliaments in a timely manner in order to put in place the additional devolved responsibilities which the Scottish people have agreed should be put in place.

1.37. The process by which such an extension of the powers of the Scottish Parliament could be secured would therefore be as follows:

  • The Scottish Parliament passes the Referendum Bill enabling the views of the Scottish electorate to be sought on whether there should be additional devolution in the terms set out above.
  • The referendum is held following a campaign period in which proponents of the status quo, extension of the Parliament's powers without power to enable independence and extension of powers to enable independence will each have their opportunity to make their case to the Scottish people.
  • The people of Scotland express their views through the referendum.
  • Following the necessary negotiations between the Scottish and UK Governments, it would then - in line with the position set out in paragraph 1.32 - be for the Scottish and UK Parliaments to act on the expressed will of the Scottish people.

(c) A vote in favour of the second proposal

1.38. The second proposal asks voters whether they agree that the extension of the Scottish Parliament's powers set out in proposal 1 should be supplemented by a further power to enable independence to be achieved.

1.39. The Scottish Government believes that the future prosperity and development of Scotland is best served by it becoming an independent country. It will continue to make this case and argue that Scotland should become independent.

1.40. The process by which Scotland could become independent would be as follows:

  • The Scottish Parliament passes the Referendum Bill enabling the views of the Scottish electorate to be sought on extending the powers of the Scottish Parliament to enable it to decide on independence.
  • The referendum is held following a campaign period in which proponents of the status quo, extension of the Parliament's powers without power to enable independence and extension of powers to enable independence will each have their opportunity to make their case to the Scottish people. The Scottish Government would campaign for a "yes/yes" vote on the basis that independence is the best future for Scotland.
  • The people of Scotland express their views through a "yes/yes" result in the referendum.
  • Following the necessary negotiations between the Scottish and UK Governments, it would then be for the Scottish and UK Parliaments to act on the expressed will of the Scottish people, again in line with the position set out in paragraph 1.32.

THE BALLOT PAPERS

FIRST BALLOT PAPER (VERSION 1: FULL DEVOLUTION)

The Scottish Parliament has decided to consult people in Scotland on proposals to seek the transfer of more powers to the Parliament.

Proposal 1 is on this ballot paper. Proposal 2 is on a separate ballot paper. You can vote on both proposals.

Background to Proposal 1

The Scottish Government, in the paper Your Scotland, Your Voice (published on 30 November 2009), set out a proposal for extending the powers and responsibilities of the Scottish Parliament while Scotland remains part of the United Kingdom.

Under this proposal the Scottish Parliament would, with certain exceptions, be responsible for all laws, taxes and duties in Scotland. The exceptions, which would continue to be the responsibility of the United Kingdom Parliament, are-

  • defence and foreign affairs,
  • financial regulation, monetary policy and the currency.

Proposal 1 - Increased powers and responsibilities for Scotland

The Scottish Parliament should have its powers and responsibilities extended as described above.

Do you agree with this proposal?

Please put a cross (X) in one box only

Decision Boxes (yes or no)

FIRST BALLOT PAPER (VERSION 2: CALMAN FISCAL REFORMS)

The Scottish Parliament has decided to consult people in Scotland on proposals to seek the transfer of more powers to the Parliament.

Proposal 1 is on this ballot paper. Proposal 2 is on a separate ballot paper. You can vote on both proposals.

Background to Proposal 1

The Commission on Scottish Devolution (the "Calman Commission") recommended in its report of 15 June 2009 that the Scottish Parliament should have the following additional financial powers and responsibilities-

  • responsibility for setting a Scottish rate of Income Tax which could vary by up to 10p in the pound from the rate in the rest of the United Kingdom,
  • power to set the rates of Stamp Duty Land Tax and other minor taxes, and to introduce new taxes in Scotland with the agreement of the United Kingdom Parliament, and
  • limited power to borrow money.

Proposal 1 - Increased financial powers and responsibilities for Scotland

The Scottish Parliament should have its financial powers and responsibilities extended as recommended by the Commission on Scottish Devolution.

Do you agree with this proposal?

Please put a cross (X) in one box only

Decision Boxes (yes or no)

SECOND BALLOT PAPER (POWER TO ENABLE INDEPENDENCE)

The Scottish Parliament has decided to consult people in Scotland on proposals to seek the transfer of more powers to the Parliament.

Proposal 2 is on this ballot paper. Proposal 1 is on a separate ballot paper. You can vote on both proposals.

Background to Proposal 2

The Scottish Government, in the paper Your Scotland, Your Voice (published on 30 November 2009), set out its preference for an independent Scotland which would-

  • have the rights and responsibilities of a normal, sovereign state,
  • be a full member of the European Union,
  • maintain a relationship with the remainder of the United Kingdom where the nations co-operate on cross-border cultural, social and policy matters, and
  • retain Her Majesty The Queen as Head of State.

Proposal 2 - Additional power to enable Scotland to become an independent country

The Scottish Government proposes that, in addition to the extension of the powers and responsibilities of the Scottish Parliament set out in Proposal 1, the Parliament's powers should also be extended to enable independence to be achieved.

Do you agree with this proposal?

Please put a cross (X) in one box only

Decision Boxes (yes or no)