Nicola Sturgeon backs down in row over Indyref2 question

She wanted to stop the independent Electoral Commission re-testing the question for fairness, accusing those wanting it to be involved of trying to “rig the whole process”.

Although the watchdog approved the Yes/No format five years ago, in 2016 it demanded a Leave/Remain format for the EU referendum in case Yes had an unfair advantage.

The SNP want to keep the Yes/No format as their campaigning is based on it, while their opponents want a change to Leave/Remain because of its toxic echoes of Brexit.

Ms Sturgeon, who wants to hold Indyref2 in the second half of 2020, is now offering MSPs a specific say on whether the Commission becomes involved.

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The Scottish Government’s Referendums Bill, which would pave the way for that vote, provided Westminster agreed, says the Commission must test all referendum questions for fairness and intelligibility.

However it includes a controversial exemption for questions which have been previously approved by the Commission - a clause aimed squarely at the question of 2014.

In evidence sessions before Holyrood’s finance and constitution committee, a series of academic experts warned against allowing such an exemption, saying the Commission should be allowed to test all questions, regardless of their previous use.

The Commission itself also said it wanted to test all questions, so that it could take into account changes of context and fresh evidence about their suitability.

Last month the cross-party committee unanimously agreed.

In its Stage One report, it said the government had to rewrite the flawed legislation to reflect the “weight of evidence” in favour of letting the Commission test the question.

It said the government “must come to an agreement” with the Commission about that testing before the Bill proceeds any further at Holyrood.

Opposition parties said the verdict was a humiliation for the First Minister.

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Until now, Ms Sturgeon and her Brexit Secretary Michael Russell have refused to change the Bill, with Mr Russell claiming a different question in Indyref2 would only confuse voters.

However, after a “constructive discussion” with the Commission last week, Mr Russell has now tabled an amendment to the Bill which would change that.

He proposes limiting the use of any question to the lifetime of the parliament which approved it - meaning no more than five years in practice.

However this “validity period” could be extended to two parliamentary terms for a previously approved question if MSPs voted in favour of such an extension.

This would still allow the Yes/No question of 2014 to be re-used in 2020 without the Commission testing it, but only if Parliament approved.

As the SNP and pro-independence Greens currently have a combined majority at Holyrood, the amendment may not make much difference in practice to excluding the Commission in the immediate term, but the process would involve a greater say for parliament.

However the change becomes far more significant if Ms Sturgeon is unable to secure Indyref2 before the 2021 election, in which case re-resting the question becomes automatic.

Despite MSPs telling Mr Russell he “must” come to an agreement with the Commission, the watchdog has not approved the proposal. It is understood to be still considering it.

In a letter to the finance and constitution committee informing them of his plan, Mr Russell says the Commission is “aware” of his intention, but does not say they have agreed it.

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Mr Russell wrote: "I have sought to find a position that is firmly based on principles and can command the widest support: this must recognise that that the Electoral Commission should report on the intelligibility of any and every referendum question; that questions do not remain current indefinitely; and that the Parliament should have the Commission's views on which to base its decision.

"This amendment would mean that a referendum question on which the Commission has previously reported should be available for use in a Bill at any point during the term of Parliament that the Electoral Commission reported and, with the agreement and a vote of the Parliament, during the following term.

“This extension to question use would be initiated by the Scottish Ministers lodging a motion to extend the validity of the question.

“As the same time as lodging the motion, Ministers must give details of the consultation with the Electoral Commission and set out why they think the extended validity period should apply. The Parliament, not Ministers, would make a decision about extension.”

Turing the committee’s evidence sessions, the overwhelming weight of evidence was in favour of the Commission adjudicating on the question for Indyref2.

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The Commission itself said it should be given around 10 weeks to evaluate the question, even if it previously tested it, because new evidence would be available to it.

In its Stage One report, the Committee approved general principles of the Referendums (Scotland) Bill, provided it was amended to reflect the weight of evidence.

Referring to Constitutional Relations Secretary Michael Russell, the report says: “The Committee recommends that the Cabinet Secretary recognises the weight of evidence above in favour of the Electoral Commission testing a previously used referendum question and must come to an agreement, based on this evidence, with the Electoral Commission, prior to Stage 2 [of the Bill at Holyrood].”

A spokesperson for the Electoral Commission said: “The Electoral Commission had a constructive meeting with the Cabinet Secretary. We will be setting out our position on the government’s proposed amendments in due course”