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Your Scotland – Your Referendum – A Consultation Document

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1 Introduction

Chapter Summary

  • The referendum will be held in the Autumn of 2014. The timetable allows for full public and parliamentary consideration of the referendum proposals and legislation and allows a proper interval between the finalisation of the rules and polling day.
  • A draft Referendum Bill is set out in the appendix to this consultation paper. As drafted it provides for a single-question referendum on independence. The Scottish Government is willing to include an additional question on further substantial devolution if there is sufficient support for such a move.
  • The Scottish Government is ready to work with the UK Government to agree a clarification of the Scotland Act 1998 that would remove their doubts about the competence of the Scottish Parliament to legislate for a referendum. Decisions on the timing and form of the referendum and its regulation should be for the Scottish Parliament.

1.1 The Scottish Government was re-elected in 2011 with a mandate to hold a democratic referendum on Scotland's future. This paper is the first step in the process which will lead to the referendum, which will be held in the Autumn of 2014.

1.2 The Scottish Government's vision for the future of Scotland is one where decisions on how it is governed are made in Scotland by the people who care most for the country. An independent Scotland would take its place in the community of nations. Her Majesty The Queen would remain as Head of State. Scotland would have the rights and responsibilities of a normal, sovereign state and continue in membership of the European Union. It would enter a new partnership with the rest of the former United Kingdom where the nations co-operate on shared interests. The Scottish Parliament would gain full responsibility for governing Scotland.

1.3 The decision on Scotland's future should be taken through a process which is beyond reproach. The Scottish Government is committed to a referendum that is conducted to the highest standards of fairness, transparency and propriety. As a step towards achieving that aim, this paper gives people the opportunity to examine and comment on the proposals for the referendum before they are put to the Scottish Parliament. A draft Referendum Bill is set out as an appendix to this consultation paper.

1.4 The proposals in this paper build on those in the Scottish Government's consultation paper Scotland's Future published in February 2010 and take account of the responses which were received to that[3].

Powers of the Scottish Parliament to legislate for a referendum

1.5 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's February 2010 paper set out a referendum question asking whether the powers of the Scottish Parliament should be extended to enable independence to be achieved. The Scottish Parliament has the power to legislate for a referendum as long as that would not change any reserved law or relate to those aspects of the constitution which are reserved by the Scotland Act 1998. The referendum question proposed in 2010 was carefully phrased to comply with that requirement. Much independent legal opinion supports the Scottish Government's view.

1.6 What is not in question is the competence 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 (see paragraph 1.25 below), is clearly within the existing powers of the Scottish Parliament.

1.7 In a paper published on 10 January 2012 the UK Government stated its view that legislation providing for a referendum on independence - even on the basis proposed by the Scottish Government in 2010 - would be outside the existing powers of the Scottish Parliament[4]. The UK paper sets out two possible mechanisms to transfer the power to hold a referendum on independence: an Order in Council under Section 30 of the Scotland Act 1998, or an amendment to the Scotland Bill currently under consideration by the House of Lords. The UK paper goes on to seek views on a series of proposed conditions for the transfer of power, including a role for the Electoral Commission and limits on the timing, on the franchise (to exclude 16 and 17 year olds) and on the number of questions to be asked. It also seeks views on whether, as an alternative to the proposed transfer of power, the UK Parliament should itself legislate directly for a referendum.

1.8 The Scottish Government's preference is for a short, direct question about independence as set out in paragraph 1.10 below. It is ready to work with the UK Government to agree a clarification of the Scotland Act 1998 that would remove their doubts about the competence of the Scottish Parliament and put the referendum effectively beyond legal challenge by the UK Government or any other party. Its preference is for a Section 30 order, but whichever legislative approach were taken, any change to the definition of the Scottish Parliament's competence would require the consent of the Scottish Parliament as well as the UK Parliament[5].

1.9 The Scottish Government does not accept the proposed imposition of conditions on the Section 30 order. The Scottish Government's mandate to hold a referendum is clear and the UK Government has denied any wish to put obstacles in the way[6]. As a matter of democratic principle it is for the Scottish Parliament to decide on the timing and terms of the referendum and the rules under which it is to be conducted.

Ballot paper

1.10 A proposed ballot paper is set out below for comment. It has been designed to comply with the Electoral Commission's guidelines which state that referendum questions should present the options clearly, simply and neutrally[7]. In line with a recommendation of the Gould Report[8] into the problems experienced by the Scottish elections in 2007 the design of the referendum ballot paper will be subject to testing using a sample of voters. The Scottish Government will also seek advice on this and other aspects of the referendum from electoral professionals (returning officers and registration officers) through the Electoral Management Board for Scotland, from the Electoral Commission and from a panel of independent expert advisers.

Ballot Paper

1.11 Any changes to Scotland's position within the United Kingdom will require negotiation with the UK Government and legislation in the UK and Scottish Parliaments. However, the Scottish Government would expect the UK and Scottish Parliaments and the respective Governments to listen to the views of the people of Scotland.

1.12 An adjustment of legislative competence under Section 30 of the Scotland Act 1998 would enable the Scottish Parliament to legislate for a referendum on the basis set out above. If the UK Government is unwilling to agree to such an adjustment without dictating unacceptable conditions, the Scottish Government will have the option of a referendum on the basis set out in paragraph 1.5.

QUESTION 1:

What are your views on the referendum question and the design of the ballot paper?

Informed choice

1.13 The choice which the Scottish electorate makes on the future of the country must be based on complete and clear information, following a full and informed debate.

1.14 The Scottish Government published a series of documents during the 2007-2011 parliamentary session which set out options for Scotland's constitutional future and the opportunities which further devolution and independence could create. Your Scotland, Your Voice[9], published on St Andrew's Day 2009, built on the two-year National Conversation on the future of Scotland. It provided examples and explanation of how more powers and responsibilities for the Scottish Parliament could allow Scotland to do things differently and better. The Scottish Government will ensure that voters have the information they need to participate in the national debate and to make an informed decision in the referendum.

1.15 As part of the process the Scottish Government will set out full details of the offer to the people of Scotland in a comprehensive white paper on independence. This will be published following Royal Assent to the Referendum Bill, expected in November 2013 (see timetable following paragraph 1.24). To ensure that voters are fully informed about the proposals, a factual information leaflet about the process of the referendum will be sent to every household. This was exactly the approach taken by the UK Government in the lead-up to the 1997 referendum about the Scottish Parliament. Comprehensive factual information will also be made available on the Internet. This information will be distinct from material produced by those campaigning for a particular outcome in the referendum.

1.16 There will be a role, described in Chapter 2 of this paper, for the Electoral Commission and the Chief Counting Officer and local counting officers in distributing information about the need to register to vote and the process of voting in the referendum. Provision of such guidance to voters is usual ahead of elections. It will not refer to the arguments on either side of the referendum.

1.17 The Scottish Government's aim is that the campaign should be fair. Although the Scottish Government has a clear preferred outcome, as did the then UK Government in the 1997 referendum, there should be no undue government influence on the campaign itself. The draft Bill therefore provides that, for the 28-day period before the referendum, the Scottish Ministers and certain public authorities in Scotland cannot publish any material providing general information about the referendum, dealing with issues raised by the questions to be voted on in the referendum, putting any arguments for or against a particular answer to the question to be voted on, or which is designed to encourage voting in the referendum. This mirrors the requirements for referendums held under the Political Parties, Elections and Referendums Act 2000 (PPERA) and the arrangements which apply to parliamentary elections. Government Ministers will, of course, be able to play their part in the campaign in an individual capacity or as members of campaign organisations.

1.18 The Scottish Government expects the UK Government and UK public bodies to commit in advance to respect the same limitation. In the context of the referendum, the purpose of this restriction is to ensure a level playing field for the two sides of the argument. Any restriction on Scottish Government publications would not achieve this aim if it was not matched by a similar restriction on the UK Government.

1.19 It will also be important to ensure fairness and an impartial approach to media coverage (including any referendum campaign broadcasts). The Scottish Government will work with broadcasters and other media and the Electoral Commission in this important area. Due weight will need to be given to the designated campaign organisations in coverage during the referendum period although broadcasters will also need to consider giving appropriate coverage to other permitted participants with significant views and perspectives.

1.20 There are established procedures for ensuring an acceptable approach for elections in relation to the coverage given to political parties. Different considerations will apply in a referendum where there are two competing outcomes which will need to be treated fairly and impartially although there may be numerous parties and other groups or individuals campaigning for these outcomes.

A simple majority

1.21 The referendum 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 UK[10] and across Western Europe[11] 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.

1.22 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 states that minimum turnout requirements and abnormal majority thresholds are not advisable. In the Scottish Government's view this is the correct approach.

Timetable

1.23 The Scottish Government has been consistent and clear on the matter of timescales. In line with commitments made during the 2011 election campaign, the Scottish Government will bring forward the Referendum Bill in time for the referendum to be held in the second half of the current session of the Scottish Parliament. Simple good sense, and a respect for due process, all point to the Autumn of 2014 as being the right time for the referendum. That will ensure that there is sufficient time for the fullest debate on what will be the most important decision in Scotland in 300 years.

1.24 The timetable between now and Autumn 2014 is shown in the table which follows. The timetable will allow full Parliamentary and public consideration. It will also meet the Gould recommendation that electoral contests should not take place within six months of the regulations for the contest coming into force. That recommendation was designed to ensure that those charged with organising and managing the poll had sufficient time to do so. It will also avoid clashes with major international sporting events in Scotland.

Public consultation on draft Referendum Bill begins 25 January 2012
Local Government elections 3 May 2012
Close of consultation period 11 May 2012
Analysis of consultation responses Summer 2012
Practical preparations including testing of the ballot paper Autumn/Winter 2012
Scottish Government Legislative Programme Statement Autumn 2012
Finalisation of Referendum Bill and development of implementation plan Autumn/Winter 2012
Introduction of Referendum Bill to Scottish Parliament Early 2013
Parliamentary consideration of the Bill: Stages 1 and 2 (including committee consideration and public evidence sessions) Early to mid 2013
Summer Recess July to August 2013
Referendum Bill passed after Stage 3 October 2013
Royal Assent to the Referendum Bill November 2013
Publication of White Paper on Independence November 2013
European Elections June 2014
Commonwealth Games July 2014
Start of regulated period (see Chapter 3) Summer 2014 (16 weeks before referendum)
Pre-referendum period (no Government publications etc) (28 days before referendum)
Referendum Autumn 2014

QUESTION 2:

What are your views on the proposed timetable and voting arrangements?

Possible inclusion of a second question

1.25 While the Scottish Government's preferred policy is independence, it recognises that there is support across Scotland - from individuals and organisations - for increased responsibilities for the Scottish Parliament short of independence. One option, full devolution (or "devolution max") was set out in some detail in Your Scotland, Your Voice and associated, more detailed publications (see paragraph 1.14). Under this option, the Scottish Parliament would, with certain exceptions, be responsible for all laws, taxes and duties in Scotland. The main exceptions, which would continue to be the responsibility of the UK Parliament, would include defence and foreign affairs, financial regulation, monetary policy and the currency. Short of independence, this option would confer significant economic powers on the Scottish Parliament.

1.26 The Scottish Government has consistently made it clear that it is willing to include a question on further substantial devolution in the referendum. The UK Government's January 2012 consultation paper seeks views on this matter[12]. The Scottish Government's position remains that it is willing to include a question about further devolution on the lines of "devolution max" if there is sufficient support for such a move. In designing a referendum on this basis the Scottish Government would take expert advice. However, it notes that a two-question referendum was held successfully in 1997 prior to the establishment of the Scottish Parliament and there are other examples internationally[13].

QUESTION 3:

What are your views on the inclusion of a second question in the referendum and the voting system that could be used?