In our recent article about the Scottish Government’s legislative programme for 2016-17 we highlighted the Scottish Government’s announcement that it planned to publish a draft referendum bill for consultation. The draft Scottish Independence Referendum Bill was published on 20 October 2016.
Although the consultation has begun, it is clear from the consultation paper that the Scottish Government has not decided yet if it will move to introduce the draft bill. As we previously noted, the draft bill is being consulted on following the EU Referendum result, “to ensure that the option of independence can be put to the people of Scotland by the Scottish Parliament should it consider that is the best approach to safeguarding Scotland’s interests”.
The proposed bill essentially applies the Scottish Independence Referendum Act 2013 (which set out the rules for the 2014 Referendum) to the new referendum, subject to certain exceptions set out in the bill.
As was the case in the 2014 Referendum, the proposed question is “Should Scotland be an independent country?” and 16 year olds will be able to vote if they are 16 by the day of the poll. Once again, there are no proposals for a minimum turnout or approval threshold. While some technical changes have been proposed, including in relation to the rules on absent voting and the appointment of polling and count staff, overall the proposals for the management and regulation of the referendum are based on used for the 2014 Referendum. The date of the poll in the draft bill is to be inserted.
The bill that eventually became the 2013 Act was introduced after the draft “Section 30 Order” was approved by both Houses of Westminster Parliament. The Section 30 Order modified the Scotland Act 1998, meaning that although constitutional matters were still (and continue to be) reserved to the Westminster Parliament, an exception was made for “a referendum on the independence of Scotland from the rest of the United Kingdom". This amendment allowed the Scottish Parliament to legislate for the 2014 Referendum but it does not allow it to legislate for a new referendum, so another order under Section 30 will be required to allow the Scottish Government to introduce the draft bill. The Scottish Government specifically refer to this in the paper, noting that it expects a section 30 order “would be sought and agreed”. Whether agreement from the UK Government would be forthcoming remains to be seen.
Responses to be consultation can be submitted until Wednesday 11 January 2017.
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