Elections watchdog may delay second Scottish independence referendum

Other experts, including the Institute for Government and Law Society of Scotland, also raised "concerns" and warned the government must not “avoid full scrutiny” on the question.

The SNP’s campaign messaging throughout 2014 and since has been built upon the word “Yes”, with the party currently using the yes.scot website to promote its arguments.

The Commission also set out a minimum nine-month timetable between Holyrood passing legislation and polling day, which would scupper any hope of an early Indyref2.

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Ms Sturgeon has said she wants another referendum in the second half of 2020, but has suggested it could be accelerated in the event of a no-deal Brexit.

However the UK government has refused to grant Holyrood the required power.

In May, the SNP Government published its 168-page Referendums (Scotland) Bill, paving the way for Indyref2, provided the missing power could be secured from Westminster.

It provoked immediate controversy by suggesting SNP ministers could ignore the Electoral Commission by re-running the Yes/No question from the first independence vote.  

Section 3 of the Bill says the Commission must be consulted on the wording of any question and publish a statement on its intelligibility.

However there is an exemption: section 3(7) says the Commission will not be consulted if it has previously published a report on the wording of the question, as it did in 2014.  

The Bill does not allow the Commission to change its mind based on new evidence - something it did 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 changed this to “Remain/Leave” after taking further evidence, saying it had concerns “about the perception that the question encourages voters to consider one response more favourably than the other”, and that this could affect “the potential legitimacy” of the result.

After the Referendums Bill was published, critics said the SNP was trying to “evade scrutiny”.

As the Herald reported, the Commission said at the time that it would want to give a view on the question of another referendum.

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It has now confirmed this in a submission on the Bill to Holyrood’s constitution committee, saying the proposed legislation does not do enough to “ensure voter confidence”.

It said: “The Electoral Commission must be required to assess any referendum question proposed in legislation, and set the Commission‟s views before the Scottish Parliament, regardless of whether the Commission has previously published views on the question proposed.”

It said the Commission’s assessment of any question would take around 12 weeks.

The watchdog also demanded a six month gap, for voter education, between the passing of any referendum law and the start of a 10-week regulated campaign period. 

Although the 12-week assessment could run concurrently with the six-month gap, this would still mean a minimum 36 week, or nine month, stretch between legislation and polling day.

The Referendums Bill is not expected to pass through Holyrood until the end of 2019, putting the earliest theoretical date for Indyref2 around September 2020, if the UK agreed.

The Commission also recommended far tougher fines to help prevent malpractice in any referendum, with the maximum set at £500,000, not the £10,000 proposed in the Bill.

In its submission to MSPs, the Institute for Government also said the clause allowing the re-running of the Yes/No question without Commission approval “be removed so that all proposed referendum questions are assessed”.

It said: “As it stands, there is only one circumstance in which this exemption would apply - if the 2014 independence referendum question were put to voters again. 

“This is one point on which the bill might be criticised because it might be perceived that the exemption was intended to avoid scrutiny of an independence referendum question. 

“Given the potentially divisive nature of referendums, it is of utmost importance that questions put to voters are perceived as fair and unbiased. 

“If a question is tested multiple times, there will be more experience and more evidence for the Electoral Commission to draw on; past experience has demonstrated that previously tested questions can be further improved. 

“The wording of the question initially proposed in the 2015 European Union Referendum Bill was a yes/no question that had previously been recommended by the Electoral Commission.

“However, following further testing and concerns raised by campaigners about this format, the Electoral Commission recommended a further change of wording to instead offer voters the options of Leave or Remain. 

“Question testing usually takes just 12 weeks and has a small cost relative to the cost of holding a poll. We are not convinced previously tested questions should be exempt from further testing and recommend that this subsection is removed from the bill.”

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The Law Society of Scotland said it had “concerns” about the same clause of the Bill. 

It said: “We take the view that this approach precludes the Commission from scrutinising the question in the light of conditions as they are at the time the question is to be posed. 

“The assumption in the bill is that, once approved, the wording of the question is suitable for ever. In other words that there are right and wrong answers to questions of intelligibility rather than judgements to be made in context.”

Pamela Nash, chief executive of Scotland in Union, said: “The people of Scotland have already chosen to remain in the UK in a once-in-a-generation referendum, so there is no need for this Bill in the first place. The SNP should drop its plan for a divisive and unnecessary second independence referendum.

“But if MSPs press ahead with the Bill, it is vital that this important recommendation from the Electoral Commission is actioned.

“Should we ever be in the situation where Scotland’s place in the UK is subject to another referendum, to ensure that it is carried out fairly and the result is respected by all, the wording of the question must be looked at again by the Electoral Commission in all circumstances, including if the question proposed is the same as in 2014.

“Crucially, ahead of the EU referendum, the Electoral Commission recommended that a ‘yes/no’ style question be dropped to ensure a more balanced question.”

A Commission spokeswoman said it was not ruling out the re-use of a Yes/No format for a second independence referendum, if one came about, but it was important that the watchdog was allowed to assess questions based on the latest evidence.

A Scottish Government spokesperson said the legislation made “specific provision” for the involvement of the commission to consider the proposed referendum question. 

“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.”