A SECOND independence referendum could be re-run with a Yes/No question even if official watchdogs were against it, under proposed new legislation.
The Scottish Government’s 168-page Referendums (Scotland) Bill would not allow the Electoral Commission to raise an objection because it had backed Yes/No for the 2014 vote.
But at the later EU referendum, the Commission changed its mind in favour of Remain/Leave because Yes/No was seen as favouring the Yes option.
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Critics said the SNP was trying to “evade scrutiny” by relying on old opinions and wanted to avoid asking Scots about remaining in or leaving the UK in case it hurt their cause.
The Electoral Commission also insisted it would want to review any attempt to use the same Yes/No format in a second independence referendum.
It said Holyrood's choicen had to be informed "by any relevant or new factors".
The SNP’s campaign messaging throughout 2014 and ever since has been built upon the word “Yes”, with the party currently using the yes.scot website to promote its arguments.
The new Bill is intended to create a generic framework for referendums of all kinds within the current competence of the Scottish Parliament.
However it is also intended to be the basis for a second independence referendum - if the UK Government agrees to transfer extra powers under a so-called Section 30 order.
The Bill empowers Scottish ministers to set the date, franchise, campaign and donation rules for referendums, as well as the question on the ballot paper.
Section 3 says the Electoral Commission must be consulted on the wording of any question and publish a statement on its intelligibility.
However, Section 3(7) says the Commission will not be consulted if they “previously published a report setting out their views as to the intelligibility of the question or statement, or... recommended the wording of the question or statement”.
As the Commission previously published a report on the Yes/No format used in the 2014 referendum, ministers could pose the same question again without asking them.
Critically, the legislation does not allow for the Commission changing its mind.
However, this is precisely what happened in the run-up to the EU referendum of 2016.
Initially, the Commission said the question should be: “Should the United Kingdom remain a member of the European Union? Yes or No”.
It then revised its opinion to Remain/Leave after taking further evidence on the matter.
It said: “We have concerns, based on our assessment, about the proposed ‘yes/no’ question.
“This is because of what we heard through the consultation and research about the perception that the question encourages voters to consider one response more favourably than the other.
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“These views raise concerns about the potential legitimacy, in the eyes of those campaigning to leave and some members of the public, of the referendum result”.
Tory MSP Adam Tomkins said: “This Bill is all about the SNP evading scrutiny. It isn’t about the democracy of referendums but the diktat of ministers.
“Under the Bill, the referendum question, the date of the referendum, and the referendum campaign period would all be set by ministers, not by Parliament as would happen at UK level.
“Evading the Electoral Commission’s scrutiny of a question it had already considered years previously is just another example.”
An Electoral Commission spokesperson sad: "We would want to review the intelligibility of any proposed referendum question; that would include a proposal to use the same wording as that used for the 2014 independence referendum.
"This would ensure that the Scottish Parliament's scrutiny of any referendum bill is informed by any relevant or new factors."
The Scottish Government denied the Bill was intended to avoid scrutiny, and said the Yes/No question could be re-tested, although this would not be obligatory.
A spokesperson said: "It will be for Parliament as a whole to decide and vote on these matters - both the proposals in the bill and in any regulations made under it - and we will of course listen to all views put forward.
"The 2014 referendum question was proposed by the Electoral Commission and provides clear precedent for a simple, straightforward and understandable question.”
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