Nicola Sturgeon suffers 'crushing blow' as MSPs tell her to rewrite Indyref2 law

It said the government “must come to an agreement” with the independent Electoral Commission on testing the question before the Bill goes any further.

It also said the Scottish Parliament should have more say over the framing of future referendums.

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Ms Sturgeon recently claimed opposition parties were trying to “rig the whole process” by getting the Commission involved in the question testing.

But the committee said the Government needed to recognise the “weight of evidence” it had received that the Commission ought to be involved.

Pro-Union campaigners called it a "crushing blow" for the First Minister.

Although the Bill is intended to create a general framework for all kinds of referendums, its immediate aim is to pave the way for Indyref2.

The Scottish Government has proposed re-using the same question of 2014 in a new referendum in 2020, namely ‘Should Scotland be an independent country? Yes or No.'

However ministers refused to let the Commission to give its view on the fairness and intelligibility of the question.

The Bill said the watchdog must ordinarily be consulted on referendum questions, but also included a specific opt-out for questions the Commission had previously tested.

In practice, this clause excluded only the 2014 question.

The Government’s refusal to let the Commission re-test the Yes/No question of 2014 led to a furious row at Holyrood, with the opposition parties demanding it be given a say.

The issue is not academic: the Commission rejected a Yes/No question for the EU referendum in 2016 in case that format advantaged the Yes option.

Having built its independence campaign around the word Yes, the SNP wants to keep the Yes/No format of 2014, and avoid a Leave/Remain one carrying echoes of Brexit.

For the same reason, opposition MSPs want any independence question to use a Leave/Remain format, and at the very least for the Commission to give its verdict.

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

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.

Constitutional Relations Secretary Michael Russell argued the public was already familiar with the 2014 question, that it was clear and readily understood, and any change could "confuse" voters and "muddy the waters".

In its Stage One report, the committee endorsed the general principles of the Referendums (Scotland) Bill, but on condition it was amended to reflect the weight of evidence.

Referring to Mr Russell, the report said: “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].”

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The Committee also found the Referendums Bill would give ministers too much power by allowing them to define key parts of a referendum through unamendable secondary legislation.

It said the Bill should be rewritten to give parliament more say by using primary legislation, which can be amended and goes through more scrutiny, instead.

It recommended “the Bill be amended so that referendums on constitutional issues must require primary legislation, and that all other referendums will ordinarily require primary legislation”.

Ms Sturgeon has said she intends to ask the UK Government by the end of the year for the power to hold Indyref2 in 2020.

However Boris Johnson has ruled it out, and Jeremy Corbyn said Labour could not agree for several years if it was in office after the election.

Bruce Crawford, the SNP convener of the committee, said: “We welcome the approach taken by the Cabinet Secretary in his oral evidence to our committee where he indicated that he is ‘open to alternative approaches to all aspects of the Bill’ and how it can be improved.

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“Our recommendations are intentionally framed to inform an open discussion on how the Bill can be improved based on the substantial evidence received.”

Tory MSP Adam Tomkins said: "The Scottish Conservatives are clear, we will oppose the SNP’s relentless pursuit of Indyref2 every step of the way.

“The evidence is overwhelming that Sturgeon’s unwanted and divisive obsession with referendums is a power grab.

“The Nationalists want powers to set up referendums by order; but MSPs have said no.

“MSPs have been equally damning of Sturgeon’s arrogant efforts to by-pass the Electoral Commission. Nicola Sturgeon has been stopped in her tracks.”

Scottish LibDem MSP Mike Rumbles added: "Nicola Sturgeon wants to rush this bill through and cut the electoral commission out of the loop because she is afraid of independent scrutiny.

“Scottish Liberal Democrats are clear that the last thing we need is a bitter and divisive independence referendum when we should be focused on stopping Brexit and building a brighter future.”

Green MSP Patrick Harvie said: “It’s clear that we need to be ready for future referendums – including one on independence, as a majority of MSPs agree, in the light of the destructive chaos of Brexit.

“But we also need to learn from the experiences of 2014 and 2016 so we can improve the law on how referendums work.

“For example, the cheating, data scandals and dark money deployed by the Leave campaign represent profound threats to our democracy, and we must update the law to prevent such attempts to undermine any referendum in Scotland in the future. There are clearly changes which are needed to this Bill before it’s ready to be passed.”

Pamela Nash, chief executive of the anti-independence Scotland in Union group, said: “This unanimous decision is very welcome and MSPs deserve credit for recognising how important it is that voters are confident in the fairness of referendums. It’s a crushing blow for the SNP in its disgraceful attempts to rig any future referendum on leaving the UK.

READ MORE: Tom Gordon: Referendum question fight is a sign of much worse to come

“This Bill should never have been introduced in the first place, as it has taken up parliamentary time when barely a quarter of people in Scotland support a divisive second independence referendum within the SNP’s timeframe.

“But the SNP’s attempts to bypass the independent Electoral Commission were shameful.

“The Commission has been clear since 2016 that yes/no questions are unfair and has favoured more balanced remain/leave questions, and only 20 per cent of Scots believe the Commission should be bypassed.

“Mike Russell must now accept the unanimous decision of this committee; although it would be far better if the SNP takes the threat of an unwanted Scexit referendum off the table and focuses on improving our public services.”

Mr Russell said: “I welcome the committee’s thoughtful scrutiny and its unanimous support for the objectives of the Bill.

"I will seriously consider the report’s findings.

“There is still a strong case, in my view, for not changing a question which has been previously proposed and tested by the Electoral Commission, remains in use and has the confidence of the public.

"However, I am open to constructive proposals.”

SNP MSP Tom Arthur, who sits on the committee, said: "It’s clear that it is now widely accepted that a referendum on becoming an independent country must happen.

"We welcome the fact that all parties who sit on the committee have joined to endorse the principles of the Referendums Bill, and to progress the debate on Scotland’s future in light of the Brexit mess.

“Introducing a framework to set out the way that future referendums will be run provides clarity about what the process will be for voters, campaigners, and administrators – to ensure that any referendum can proceed in a transparent and democratic matter. 

“For the last three years, Scotland has been treated with contempt by Westminster. People in Scotland want to escape Brexit, and it’s time to put Scotland’s future in Scotland’s hands – not in the hands of Boris Johnson."