Alistair Clark (Newcastle University) on the legislation and timing governing a second Scottish independence referendum arguing that the vote is very unlikely to happen in 2021.
Speculation about the timing of a second Scottish independence referendum continues in advance of the forthcoming Holyrood election. Both sides in the debate have some interest in talking up the imminence of a referendum to mobilise support in the run up to May’s elections.
The SNP’s Mike Russell and Ian Blackford have both been reported as claiming that this might be held towards the end of 2021. The pro-Union parties meanwhile have linked discussion of IndyRef2 to the pandemic, with Douglas Ross in particular claiming that there should be no talk of a referendum during the current COVID-19 crisis. More recently, the First Minister, Nicola Sturgeon, has been using the formulation ‘in the earlier part of the next Scottish parliament’ to describe the timing. More on this is expected in the SNP’s manifesto for the 2021 elections.
These debates have largely failed to consider some crucial aspects of electoral law which are likely to apply. These have implications for the potential timing of any second independence referendum. This blog examines the implications for timing that flow from the Referendums (Scotland) Act 2020, which will be a central piece of the SNP’s proposed roadmap for arriving at, and legislation governing, a second Scottish independence referendum.
A New Legislative Process
The Referendums (Scotland) Bill 2019 was passed as the last legislative act of the Scottish parliament in December 2019 and gained Royal Assent on 29th January 2020. My article ‘More Than Indyref2? The Referendums (Scotland) Act 2020’ discusses the legislative and scrutiny process the bill went through. It is a complex piece of electoral legislation, covering issues around calling any referendum within the powers of the Scottish parliament, how referendum questions will be decided, regulation of the campaign and funding, and rules for the electoral administration of any referendum. It also contains some electoral law innovations, including raising the maximum fine for misconduct to £500,000.
Without getting bogged down in the separate question of whether a Section 30 order is needed, it is crucial to note that any second Independence referendum still requires further primary legislation. Having such an extensive piece of legislation on the statute book already in the form of the Referendums (Scotland) Act 2020 means that this new legislation can be a short bill, concerning issues such as the date of a second independence referendum, and the question to be asked at that referendum.
Nonetheless, a primary legislative process will still take time. The passage of the Referendums (Scotland) Act took six months from introduction on 29th May 2019 to being passed on 19th December 2019. Recent experience with the Scottish General Election (Coronavirus) Act has shown that electoral legislation can be introduced and become law in around two months. That however was a relatively technical bill legislating mainly for contingencies.
There will be plenty of incentive for opponents of IndyRef2 to table amendments to new primary referendum legislation and seek to revisit many of the issues already examined in the scrutiny of the Referendums (Scotland) Act 2020. This process will inevitably take some time to complete. An approximately three-month legislative process from introduction to Royal Assent would be quick, although it could well take longer.
A Question of Question Testing
One of the most contentious issues in the passage of the Referendums (Scotland) Act 2020 was the issue of the Referendum question. The Scottish Government were keen to ensure that the question used in 2014, ‘Should Scotland Be An Independent Country?’, with Yes/No response options, be repeated. Opponents were less keen, looking to the 2016 EU referendum and suggesting a Leave/Remain answer to frame the question differently. The Scottish Government countered that the 2014 question had been asked in numerous opinion polls since, and therefore it was a question that voters were already familiar with.
Issues over the question and testing will reappear around any primary legislation being introduced to the Scottish parliament. The Electoral Commission were clear in their evidence on the Referendums (Scotland) Bill that they should be consulted on any proposed question, and that a full question testing process would take around 12 weeks to completion.
There is some confusion over when question testing is to be conducted. Section 2, para 5b (i) suggests that the Commission must publish a statement ‘as soon as reasonably practical after the Bill is introduced’. A ‘validity period’ of two Scottish parliament terms inserted during the legislative process and designed to avoid question testing for a referendum in late 2020 will not apply to the next Scottish parliament. The question used in 2014 will therefore be proposed for testing. Practice on timing has been different however. Nicola Sturgeon asked the Electoral Commission to test the 2014 question in January 2020, prior to a new bill being introduced, although that process was stalled by the Coronavirus crisis.
If the SNP’s aim is, as currently stated, to introduce a Bill prior to the Scottish parliament going into recess before the May election, and work on the same reintroduced bill continues after the parliament reconvenes, question testing would appear to run concurrently with the legislative process. It is hard to see that legislative process making much headway without a question to discuss. The provision in Section 2, (2) and (3) to allow for a question to be approved by subordinate legislation (which would take around 40 days) is highly likely to be extremely controversial if that were pursued. That seems unlikely. Parliament already rejected a proposal for major and constitutional referendums to be called by secondary legislation when passing the Referendums (Scotland) Act.
A full primary legislative process, including the referendum question and answer, would seem most likely with a twelve-week question testing process taking place as the first stage in doing so, followed by the full legislative process. There will nevertheless be much politicking and procedural considerations around how this will work in practice.
The Referendums (Scotland) Act 2020 also provides regulations for campaign conduct. Following the practice in the Scottish Independence Referendum Act (SIRA) 2013, and other referendum acts in the UK, lead campaign groups for each side of the referendum question are designated by the Electoral Commission. These designated groups can spend up to £1.5m on the campaign.
There are timing implications to this. There is an application process for designation, set out in Schedule 3, Part 2, paras 7 and 8. Groups aspiring to lead the campaigns will have 28 days to apply. The Electoral Commission then have 16 days to designate lead campaign groups. This month and a half long process happens prior to the formal campaign regulated period. This begins a day after the Electoral Commission have made their designations.
Finally, there is a formal 10 weeks regulated referendum campaign period. This is shorter than the 16 weeks allowed for the 2014 Independence referendum, but aligned with practice for other referendums that had been held under the UK’s Political Parties, Referendums and Elections Act (PPERA) 2000.
Pulling all this together, and assuming a relatively quick three-month primary legislative process, after question testing and with few further hold-ups, each of these aspects of the Referendums (Scotland) Act 2020 adds up to around 10 months of time already accounted for or implied by that legislation before polling day. It may be that any subsequent primary legislation revisits and shortens aspects of this. There would however need to be very good reasons to do so, given that the scrutiny of the original bill very much considered aspects of electoral integrity in passing it.
There will not therefore be an Independence referendum in 2021. A May 2022 date might sound possible to some. However, Section 3A (1) of the Referendums (Scotland) Act prevents a Referendum from being held on the same day as any other election. The next Scottish local elections are already scheduled for May 2022, ruling that out as a possible date. A date after May, perhaps even in September as per the first Indyref, would therefore seem a potentially practical date for a second independence referendum. The current formulation being used with regard to timing, ‘in the earlier part of the next Scottish parliament’ nevertheless covers various eventualities around timing well beyond that and takes into account the constraints of current legislation.
There remains a long and hard road to be negotiated between the Scottish and UK governments before a second independence referendum can take place. Whether this is resolved, and how, will be a matter of politics as much as law. But any debate about timing needs to be informed by the practical constraints imposed by current electoral law around the issue to avoid false expectations being raised on either side of the debate.
Alistair Clark is Reader in Politics at Newcastle University. He has written widely on both electoral integrity and Scottish electoral politics. He was Advisor to the Scottish Parliament’s Finance and Constitution Committee’s Stage 1 scrutiny of the Referendums (Scotland) Bill. He is currently working, with Toby S. James (University of East Anglia) and Erik Asplund (International IDEA), on an ESRC-funded project examining the conduct of elections during the COVID-19 pandemic, ‘National Recovery and Resilience: Learning from Elections During a Pandemic’. He tweets at @ClarkAlistairJ
Photo by Nick Hillier on Unsplash