Draft referendum bill: consultation analysis

Executive Summary

1. On 20 October 2016, the Scottish Government launched a consultation on a draft Referendum Bill. ^[1] The consultation paper set out the Scottish Government's proposals for legislation for a possible referendum on independence for Scotland. The consultation ran for three months, and closed on 11 January 2017.

2. The consultation paper proposed a number of changes to the procedures followed in the 2014 Scottish independence referendum. Some of these related to legislative changes implemented after 2014, and some were intended to address specific issues raised following the 2014 referendum. The consultation contained five open questions which all took the form: 'What are your views on…?' These addressed: (i) arrangements for managing the referendum; (ii) technical changes to polling and count arrangements (since the 2014 referendum); (iii) changes to rules on permitted participants; (iv) campaign rules and rules on spending; and (v) changes to the rules on permitted participants' expenses and transactions between qualifying and non-qualifying persons.

3. This Executive Summary covers the key findings from the responses to the consultation. Further details are provided in the full report which follows.

About the respondents and responses

4. The consultation received 7,667 submissions. Of these, 469 were removed prior to analysis because: (i) they did not contain both a valid name and valid contact address; (ii) they were entirely blank; or (iii) the respondent had submitted more than one response to the consultation (multiple different responses submitted by the same individual were combined into a single composite response). Thus, the analysis was based on 7,198 responses. The vast majority of these (more than 99%) were submitted by individuals. There were 41 responses submitted by organisations or groups. Organisational respondents included those with specific expertise in relation to overseeing elections and voter registration, and a range of third sector bodies, campaign groups and political groups.

Views of key organisational stakeholders

5. A separate analysis was undertaken of the responses from key organisational stakeholders. These were organisations with expertise or responsibilities in relation to the regulation and oversight of elections, voter registration, law and UK broadcasting. Among these organisations, there was general support for the proposed management arrangements set out in the consultation document. However, each organisation also highlighted specific areas where they thought further discussion with the Scottish Government was needed.

6. Other respondents expressed a range of views on the proposals put forward, and these are discussed below.

Management and mechanics of the referendum

7. Respondents expressed a range of views on the Scottish Government's proposals for managing a future referendum. On the one hand, some endorsed the proposals. On the other, there were concerns expressed (particularly in relation to security issues), as well as disagreement with certain proposals (particularly in relation to the franchise).

Role of the Electoral Commission

8. There was a range of views expressed in relation to the role of the Electoral Commission. Some respondents expressed support for the Electoral Commission and valued its independent role in overseeing and regulating the referendum. There were also positive comments about the Electoral Commission's work in reviewing the conduct of the 2014 independence referendum, and endorsement of their recommendations. Some wished to see the powers of the Electoral Commission extended and strengthened.

9. However, other respondents expressed dissatisfaction with the role played by the Electoral Commission in the 2014 referendum. These respondents did not see the Commission as impartial or sufficiently independent of the UK Government. There were calls from respondents in this group for an alternative organisation (often an international organisation) to take on the role of independent scrutiny and oversight of the referendum - either in lieu of, or in addition to, the role of the Electoral Commission.

Conduct of the poll and the count (including proposed technical changes on absent voting and poll and count staff)

10. In relation to the conduct of the poll and the count, one of the most prevalent themes in respondents' comments was a concern about security and the possibility of electoral fraud. These respondents thought that a range of actions should be taken to tighten up security arrangements for any future referendum.

11. Among those who expressed concerns about security issues, there was a particular lack of confidence in postal voting, and in whether the rules governing the use of postal voting were properly applied in the 2014 referendum. However, in general, and irrespective of whether they expressed concerns about postal voting, respondents supported the proposal set out in the consultation paper requiring 100% checking of personal identifiers on all postal voting statements.

12. There was widespread agreement with the proposal in the consultation paper that the counting officer must not knowingly appoint or employ anyone who has been involved in campaigning during the referendum. However, there was also a view that this change did not go far enough in ensuring the neutrality of polling and count staff.

Verification statements

13. Regarding the proposed technical change in relation to the 'verification statement', a small minority of respondents offered comments. Among this group, the proposal was welcomed, with respondents agreeing that this would improve the transparency, security and fairness of the voting arrangements.

Eligibility to vote

14. In relation to the eligibility to vote, there was much comment from respondents about who should and should not have a vote. In most cases, if respondents made a comment in relation to the franchise, they did so because they disagreed with some aspect of what was proposed in the consultation paper.

15. There were conflicting views about having a franchise based primarily on residence. Some agreed with the consultation paper that a franchise based on residence was appropriate since they believed only people living in Scotland would be affected by the outcome of the vote.

16. However, the issue raised most often by respondents who commented on eligibility to vote was whether people who had been born and raised in Scotland, but who were now living outside of Scotland ( i.e. elsewhere in the UK or abroad) should have the right to vote. Among those who raised this issue, the more common view was that Scottish expatriates should be able to vote in the referendum. Those who put forward this argument often commented that they themselves were currently living outside of Scotland (usually 'temporarily'), but that they still considered themselves to be Scottish and wanted to vote in the referendum. An alternative, less common view was that Scottish people living outside of Scotland should not be permitted to vote in the referendum.

17. Some respondents also expressed views about the eligibility to vote of other groups mentioned in the consultation paper. There was, for example, frequent comment about whether 16- and 17-year olds should be able to vote.

Other aspects of the referendum arrangements

18. The introduction to the consultation paper set out the Scottish Government's proposals for the use of a section 30 order to allow the Scottish Parliament to legislate for a referendum; the question to be used on the ballot paper; and turnout and threshold requirements for the referendum. Although the consultation paper did not include questions on these issues, some respondents nevertheless offered comments on them. In relation to the need for a section 30 order, some endorsed this process while others felt it should not be required. In relation to the referendum question, there were conflicting views about whether the question used in the 2014 referendum should be used again - while some thought this was appropriate, respondents more often favoured using a revised question either because they thought the original question was 'biased', or because they thought the question was no longer appropriate due to the significantly changed circumstances. Finally, in relation to the turnout and approval threshold, those who made comments usually did so because they did not think a 'simple majority' should be used.

Campaign rules

19. The consultation sought views about specific technical issues related to: (i) proposed changes in the rules on permitted participants; (ii) the campaign rules and rules on spending; and (iii) proposed changes to the rules on permitted participants' expenses and transactions between (a) permitted participants and (b) qualifying / non-qualifying individuals and bodies.

20. Very few respondents engaged with the technical aspects of these questions, and those who did largely focused on broad topics rather than the detail of the proposals. Among the small number who did engage with the technical detail of the changes proposed in the consultation paper, there was general support for the changes proposed, with respondents suggesting that the changes were 'sensible' and would support fairness and transparency. The main themes in the other responses are summarised below.

Eligibility to register as a permitted participant

21. The predominant view was that only individuals / organisations based in Scotland should be able to register as permitted participants. An alternative view was that individuals / organisations based anywhere in the UK should be able to register, but that all members of a permitted participant campaign group must be exclusively domiciled in the UK.

Campaign spending

22. The main view was that there should be defined limits on campaign spending, and that this limit should apply to the campaign overall, rather than to separate campaign groups. The alternative view, expressed less often, was that there should be no limits on spending.

Campaign donations

23. Comments in relation to campaign donations and donors tended to focus on: (i) prohibiting or restricting campaign donations from specific sources, individuals or groups; (ii) setting a financial limit on donations; and (iii) the desire for full transparency in relation to donations and donors. The desire for greater transparency was shared by all respondents who commented on the issue of campaign donations.

Use of public funds and the role of Government in the referendum

24. The predominant view - expressed by the overwhelming majority of those who commented on this issue - was that no public funds should be used for any future referendum campaign. Among those who commented on this issue, some also suggested that 'public funds for the referendum campaign' should be taken to include all the expenditure incurred as a consequence of any work undertaken by civil servants in relation to the referendum. Others argued that civil servants should not be involved in producing documents that could be perceived as making the case for one side or other of the campaign.

Quality of campaign information and potential for bias

25. Respondents repeatedly commented that it was important for people to have access to fair, honest and accurate information to allow them to decide how to vote. There were also concerns expressed about the role of the media in any future campaign. In particular, respondents wished media coverage in any future campaign to be either 'balanced' or 'impartial'.

Other comments

26. Respondents made a wide range of other comments which were not directly related to the consultation questions or any of the issues discussed in the consultation paper. It was not within the scope of this project to conduct an analysis of these comments. However, the main theme within these comments was in relation to the principle of holding another referendum on Scottish independence. Other out-of-scope themes discussed by respondents concerned enhancing voter registration procedures to improve voter turnout, and the modernisation of voting procedures.