Scottish Government likely to follow watchdog advice on referendum

The Scottish Government is expected to abide by the advice of the official body that is scrutinising the proposed question for the independence referendum, the Deputy First Minister has confirmed.

Nicola Sturgeon provisionally addressed concerns that ministers may ignore forthcoming guidance from the Electoral Commission on the grounds that it is non-binding and could potentially be at odds with their own formulation, which some have dismissed as "leading".

Holyrood's Referendum Bill Committee approved new powers to stage the referendum in a vote on Thursday.

Ms Sturgeon also set aside speculation that the outcome of the referendum could still end up in the courts, despite these new powers, arguing that any legal challenge is unlikely to be effective.

However, the committee also heard further evidence from experts who said concerns remain over the neutrality of the question, the process of the referendum and the legality of the outcome.

Ms Sturgeon said: "The role of government is to propose, the Electoral Commission to advise and Parliament to decide. I have seen comments from Andy O'Neill, the head of the Commission in Scotland, that makes it very clear that that is their understanding of the role: they are not the decision-makers, they are the advisers.

"That said, I have great respect for the authority and the expertise of the Commission. It has been built up over a number of years now. I think any government anywhere in the UK would not depart from Commission advice unless there was a very strong reason to do so. Any government doing so would clearly have to justify itself before Parliament.

"That's not a position I want to be in, it's not a position I expect to be in, but nor am I going to sit here and attempt to give away the proper role of Government and Parliament in this process, because I think it's right that that process is one that we continue to respect."

The committee unanimously approved the modification of Schedule 5 of the Scotland Act 1998, which confers powers on the Scottish Parliament to stage the referendum with a question and date of their choosing, within certain limits, and extend the franchise to 16-and-17-year-olds.

Ms Sturgeon said: "We are in a place now that puts the referendum beyond any effective legal challenge and I think that is a decent and good place to be as we approach the debate on the substance (of independence)."

The committee took evidence from constitutional expert Dr Nicola McEwen, from Edinburgh University, who has raised concerns that the proposed question may be "leading".

In a submission ahead of her appearance Dr McEwen said: "The proposed question, 'Do you agree that Scotland should be an independent country?', has the advantage of being clear and succinct, but it may give rise to a number of potential issues. First, by inviting agreement, the question may be construed as leading voters toward a positive answer."

She suggested a "plain language alternative": "Should Scotland be an independent country?"

She told the committee this morning that she also has concerns about the process of the referendum, arguing that ministers should outline a "substantive" case for independence first and then send the question off for testing.

"I dont envy the Electoral Commission's task," she said. "We are in an unusual situation. In the past when the Commission has judged the question, they've already had the substantive proposal or piece of legislation on which that question is based. Were in a different situation now where the substance of the question itself is a little ambiguous.

"In other words, what does it mean for Scotland to be an independent country? I suspect if we asked that question around the committee I expect we would have some difference of opinion, not necessarily along party lines."

Ms Sturgeon remained firm on the timing of their independence plans, which are not due to be finalised until November 2013, and their decision to send the question away for testing in advance.

"The order we have chosen to do things is the right order," she said. "It`s absolutely essential that the testing of the question is done in good timing ahead of the Referendum Bill."

Navraj Singh Ghaleigh, lecturer in public law at Edinburgh Law School, conceded that a legal challenge to the referendum would be "extremely unlikely to succeed" but said it could not be ruled out altogether.

"There would still remain a basis for a challenge," he said. "Statutory powers can only be used to promote and not frustrate the policy and object of an Act. So, the question is: does an order made under the Scotland Act promote or frustrate the objectives of the Scotland Act?

"You can see how it could be argued that it would be a frustration of the object of the Act. Its not about devolution, its about a separate substantive point, namely independence."

Despite these legal concerns, Dr McEwen said the amendment to the Scotland Act was fit for approval by the Scottish and UK parliaments, although she earlier stressed she was not a constitutional lawyer.

Mr Singh Ghaleigh, a former barrister who specialises in electoral law, remained non-committal. "Is it fit?", he said. "Well, its the procedure youve got."

Committee convener Bruce Crawford said he would "take that as a yes".

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