Scottish Affairs CommitteeWritten evidence submitted by No Campaign Limited

No Campaign Limited

Under the name “NO to AV” No Campaign Limited was formed for the purposes of fighting the AV Referendum of 2011. It was the designated lead campaign group on the No side. Although the company is now formally dormant, the individuals involved in its operations continue to take an interest in referendum-related matters.

Matthew Elliott is a board director of No Campaign Limited and was the Campaign Director of NOtoAV, which turned public opinion from being 2:1 in favour of introducing the Alternative Vote to voting 2:1 against a year later in the referendum. Matthew also founded the TaxPayers’ Alliance in 2004, to campaign on behalf of taxpayers and to tackle government waste, and is still serving as Chief Executive. He launched Big Brother Watch in 2009 to fight the surveillance state, and has been described as “probably the most effective political campaigner that Britain has produced in a generation”.

William Norton is a board director of No Campaign Limited and was the Responsible Person for the AV Referendum, handling the legal and compliance aspects of the campaign. He was also the registered referendum agent for No Campaign Limited in all 440 electoral districts. In the past William acted as referendum agent for North East Says No Limited, which was the designated lead campaign group on the No side for the 2004 North East Referendum. He is the author of White Elephant: How the North East said NO (Social Affairs Unit, 2008), an account of the regional assemblies issue and how the North East Referendum answered it.

Executive Summary

Any Scottish Referendum should be fought under PPERA

In terms of ensuring widespread legitimacy for the result, it would be best to legislate for a Referendum under the PPERA framework, without any “special measures”.

Use of PPERA would ensure that the Electoral Commission vetted any referendum question. They have a demonstrable track record in securing the re-writing of unacceptable questions.

The Chair of the Electoral Commission should be the Chief Counting Officer, as directed by PPERA. Power could be taken to appoint a local Deputy Chief Counting Officer, as happened in the Welsh Referendum.

Not only does the Electoral Commission already have the function of neutral and independent referendum oversight under PPERA, it has experience and a track record in discharging the role.

The Electoral Commission formally reports to the UK Parliament following every PPERA referendum. There is no reason why it could not submit a joint report to both the UK and Scottish Parliaments following a Scottish Referendum.

On balance, the best mechanism for holding a referendum would be a bespoke Referendum Bill including the Question and conferring a trigger power on the Scottish Parliament. This would be introduced after PPERA has been amended and once sufficient progress has been made in addressing the “Unanswered Questions”.

The timetable for a Scottish Referendum

Until there is some information about the “Unanswered Questions” concerning practical post-secession issues it would be impossible to hold a fair and decisive referendum. You cannot form Yes and No Campaigns for a referendum until you know what you are being asked to say “Yes” or “No” to.

Autumn 2014 might, if anything, be too short a deadline. However that does provide additional time in which to address issues around the current PPERA framework.

The precedent of the Welsh Referendum should be followed to allow a two-thirds majority of the Scottish Parliament to trigger the holding of a referendum. The Question (as vetted by the Electoral Commission) and the rules for the ballot would be set down in UK legislation. It would be prudent, however, to prohibit the combination of a referendum with other elections.

The referendum period should be a minimum of 16 weeks.

There should only be a single question

A Second Question would only be justifiable if it involves a genuinely subsidiary matter which is connected to the First Question and not a wholly distinct issue. Otherwise it will confuse the voters and prejudice the ability of campaigners to put their case effectively.

The test is clearly failed if a Second Question for Scotland involved greater devolution (or, for that matter, less) within the UK.

PPERA should be revised before any future referendum is held

Generic rules for the conduct of referendum ballots should be placed on a permanent statutory footing, by inserting them as a new Schedule to PPERA.

The rules on declarable spending should be amended to remove double-counting where two campaign groups share expenditure (eg for a joint rally).

Evasion of the spending limits is best prevented by strengthening the requirements for registration as a permitted participant with proof from the responsible person that each group is genuinely independent.

The provisions for the reporting of loans which applied for the AV Referendum should be incorporated into PPERA on a permanent basis.

The provisions for grants to designated lead campaign groups should be replaced by a matched-funding arrangement to reimburse 50% of a designated organisation’s spending on its mail-shot and TV broadcasts, up to a maximum of payment of £500,000 for a UK-wide referendum. This would still represent a reduction from the current maximum grant figure of £600,000.

The provision which prohibits undue influence of a referendum by public authorities is defective and not fit for purpose. It should be replaced by a new measure:

Restrictions should continue to apply to Ministers of the Crown, government departments, local authorities, public bodies and organisations who receive a majority of their resources from public funds.

“Public funds” should include EU funding, which is currently ignored altogether.

Restrictions should run from the day after designation of the official Yes and No Campaigns—or when the Commission decides that it cannot designate.

Breach should create an offence (which it does not at present). The Electoral Commission and anyone eligible to vote in the referendum should be able to refer a case to the courts.

Expressing or providing support for one side in a referendum should be prohibited as well as the activities currently forbidden.

Designated organisations should not be able to publish material or information which would be prohibited if another individual or body published it directly.

The Draft Bill proposed by the Scottish Executive is inadequate

The proposed question is unacceptable.

Refusing to pay grants to designated organisations creates the risk of not providing the voters of Scotland with the full and equal information they deserve.

It is wrong for Scottish Ministers to appoint the Chief Counting Officer.

The Draft Bill omits any regulation of campaign loans.

The provisions relating to a designated organisation’s right to send a referendum address to every voter appears to be unworkable.

Apparently the cost of the air-time for referendum broadcasts would be a declarable expense—which also appears to be unworkable.

The proposed spending limits would give an unfair incentive for political parties to take the lead roles in the referendum and contain an obvious loophole.

The rules on joint expenditure are misconceived and would penalise different groups that want to co-operate on one side.

The restrictions on undue influence of a referendum using public money are even less adequate than the current PPERA “safeguards”.

1. Any Scottish Referendum should be fought under PPERA

1.1. There is no need to reinvent the wheel. There is an existing framework for fighting a referendum, laid down by the Political Parties, Elections and Referendums Act 2000 (“PPERA”). That statute was drafted following a full review of the area by the Committee on Standards in Public Life, under the chairmanship of Lord Neill, in their Fifth Report of October 1998. That report considered the recent experience of the 1997 referendums, as well as looking back to the 1975 European Referendum, in formulating their recommendations.

1.2. The PPERA framework sets out the basic regulatory system for a referendum (donations, expenditure rules, registration of participants etc.) which would be common to all referendums. It envisages that the specific detail which would be unique to any given referendum (question, date, referendum area, conduct of the ballot etc.) would be contained in bespoke legislation. That broad division, whilst it can be criticised as to which items fall either side of the line eg generic conduct rules, makes sense.

1.3. There is no good reason to depart from the PPERA framework for any Scottish Referendum. The special devolved status of Scotland within the UK does not mean that there has to be a special devolved way of holding a referendum. Wales also has a (slightly different) special status, yet PPERA was used for the Welsh Referendum of 2011. If PPERA is not the “right” way to hold a referendum, it should be corrected so that all future referendums can benefit (a view we subscribe to—see Section 4).

1.4. In terms of ensuring widespread legitimacy for the result, it would be best to legislate for a Referendum overseen under the PPERA framework, without any “special measures”. There are distinct advantages in using the PPERA framework for any referendum on the possible secession of Scotland from the UK.

Who sets the question?

1.5. Under previous PPERA referendums, the questions have always been written into the specific legislation for each vote.1 The questions have been settled by Parliament, which in practice means politicians.

1.6. However, under PPERA section 104, the Electoral Commission has the duty to consider the “intelligibility” of each proposed question and report to Parliament upon it. They do so on the basis of published guidelines.2

1.7. This is not a rubber-stamping exercise. The Electoral Commission recommended and secured the re-writing of the original questions in both 2011 referendums.

The Welsh Question was re-written principally to remove ambiguity and to ensure a more comprehensible translation into Welsh.3

The AV question was re-written to be easier to understand (two shorter sentences in clearer language), less biased (focus group research found that some people considered the original to be slanted) and to make more explicit that a Yes vote would lead to a complete replacement of the current voting system.4

1.8. It would be naive to expect that any referendum question could be settled outside the political process. Since it is an inherently political act, it would also be undesirable for the writing of the question to be passed to an independent body, because that could compromise their independence. However, the current PPERA arrangements offer a useful control in that they would force legislators to justify publically any question which received an adverse report from the Commission—and if they ignored such a report, that would probably become an issue in the following referendum (with the adverse publicity neutralising the gain from any bias in the question itself).

1.9. As the experience of 2011 indicates, the PPERA arrangements work well. They would not apply to a referendum conducted under standalone Scottish legislation (as the Commission themselves concede).5 If such a review role were given to a different body created especially for a Scottish Referendum it would not carry the same authority.

1.10. The terms of the Scottish Executive’s draft Bill indicate that the Electoral Commission have a valuable contribution to make in vetting any question (see Section 5).

Who counts the votes?

1.11. PPERA section 128 directs that the Chairman of the Electoral Commission will be the Chief Counting Officer, unless an alternative is appointed by the holder of that post. An exception relates to Northern Ireland, where the Chief Electoral Officer is to be Chief Counting Officer for a Northern Ireland-only referendum and otherwise must be the counting officer for the whole of the region. For understandable electoral purposes the whole of the region is treated as a single voting area with an independent election staff. Under PPERA there is no direct ministerial power to remove the Chief Counting Officer (other than in extremis removing the Chair of the Electoral Commission).

1.12. This provides an objective and impartial basis for the conduct of the ballot. It has been used on three occasions, in each case in a slightly different way:

In 2004, the section 128 power was exercised to appoint the Chief Executive of Sunderland City Council as Counting Officer for the North East Referendum.

In 2011, the Chair of the Electoral Commission acted as Chief Counting Officer for the Welsh Referendum, but the specific regulations included a provision to appoint a Deputy Chief Counting Officer and the Chief Executive of Pembrokeshire Council (who is also the returning officer for Wales for European elections) held that post.

In 2011, the Chair of the Electoral Commission also acted as Chief Counting Officer for the AV Referendum, but the specific legislation included the appointment of Regional Counting Officers to oversee certification of results at a regional level. The Convener of the Electoral Management Board acted as the Regional Counting Officer for Scotland in the AV Referendum.

1.13. Scotland has a different system for administering elections to the rest of the UK, following the recommendations of the Gould Report after the debacle of the introduction of STV for local government. The Convener of the Electoral Management Board directs the activities of local returning officers, which is not the case in conventional elections elsewhere (although a similar power for the Chief Counting Officer to issue directions to returning officers was used for the AV Referendum).

1.14. In practice, the day-to-day operational management of the Referendum would be in the hands of the Convener. The only question is whether the Convener holds the legal post of Chief Counting Officer and, if so, who is responsible for that appointment (with the implied power of removal).

1.15. The obvious solution is to follow the example of the Welsh Referendum, with the Convener being Deputy Chief Counting Officer. Alternatively, if thought preferable, the Chair of the Electoral Commission could directly appoint the Convener along the lines of the 2004 North East Referendum. Whichever outcome is followed, it would obviously carry greater confidence if it were decided by the independent Chair of the Electoral Commission, rather than politicians involved in the referendum itself.

Who should regulate the referendum?

1.16. A neutral and impartial body should oversee the conduct of elections. Such a body already exists (the Electoral Commission). Not only does it already have that function under PPERA, it has experience and a track record in discharging the role. There is no need to invent something that already exists.

1.17. The Electoral Commission formally reports to the UK Parliament following every PPERA referendum. There is no reason why it could not submit a joint report to both the UK and Scottish Parliaments following a Scottish Referendum.

How should the Scottish Referendum be authorised?

1.18. It has been suggested that a Scottish Referendum could be held under (a) a statute of the Scottish Parliament; (b) an amendment to the current Scotland Bill; (c) a Section 30 Order under the Scotland Act 1998; or (d) a special Referendum Bill.

1.19. As can be seen from a cursory reading of the Scotland Act 1998, the Scottish Parliament does not have the legal power to hold a referendum on leaving the UK.

1.20. The current Scotland Bill could be amended. However there would not be time to address the “Unanswered Questions” (see Section 2) and it would probably not be possible to use it to amend PPERA (see Section 4).

1.21. A Section 30 Order could be used, but the text of the Order would have to include such matters as the Question, the conduct rules for the referendum and other ancillary details which would be advisable given the current draft Bill produced by the Scottish Executive (see Section 5). An Order would probably not be the best vehicle for ensuring line-by-line parliamentary scrutiny.

1.22. On balance, the best route is probably a bespoke Referendum Bill including the Question and conferring power on the Scottish Parliament to trigger a referendum. This would be introduced after PPERA has been amended (see Section 4) and once sufficient progress has been made in addressing the Unanswered Questions.

2. The Timetable for a Scottish Referendum

2.1. There are three issues involved in determining the timetable for any Scottish Referendum: when should it be held; who sets the date; and how long should the referendum period last?

When should a Scottish Referendum be held?

2.2. The Scottish Executive’s suggested timetable, set out in their Consultation Document,6 envisages a process lasting nearly three years, culminating in an Autumn 2014 poll.

2.3. The process for the North East Referendum started in May 2002 and ended in November 2004. In that case the UK Government had to (a) consult on the possible powers of a regional government; (b) pass framework legislation for holding a poll; (c) consult each region on whether there was sufficient interest in holding a referendum; (d) await the recommendations of a Boundary Commission for the possible reorganisation of local authorities; and (e) enact statutory instruments containing the specific detail for the ballot.

2.4. The Welsh Referendum had a gestation period of at least five years (from the passage of the Government of Wales Act in July 2006 to March 2011). That was because the 2006 Act merely authorised the calling of a referendum on additional powers and there had first to be a lengthy local consultation process. The actual vote of the National Assembly for Wales which triggered a referendum took place in February 2010, meaning that the process required about thirteen months to initiate and conclude.

2.5. The AV Referendum took, from the publication of the Bill to the holding of the poll, about ten months (July 2010 to May 2011). That was considered at the time to be too short and to have created administrative difficulties. In practice most of the delay came about because the parliamentary Bill contained non-referendum matters, dealing with a reorganisation of Westminster constituencies. The administrative problems which did occur were mainly caused by the decision to hold the AV Referendum at the same time as other elections, resulting in a ten week referendum period that commenced immediately on Royal Assent.

2.6. Such problems as did happen with the AV Referendum, therefore, arose for reasons other than the shortness of any preliminary consultation time. From the perspective of the mechanics of holding a referendum, then, an Autumn 2013 poll would be eminently feasible since it would not coincide with any other elections.

2.7. However, concentrating solely upon the administrative and mechanical aspects overlooks the most important factor of whether a referendum can reasonably be held: whether people are in a position to cast a fully-informed vote:

In the North East Referendum of 2004 voters were asked whether they wanted a regional assembly. They were able to judge the merits of this proposal because the Government published in advance a draft Bill setting out the powers and responsibilities of such a body. In County Durham and Northumberland there were Second Questions concerning a reorganisation of local government if an assembly were approved. Voters could choose fairly because they were told what the new local authority boundaries would be under either choice.

In the Welsh Referendum of 2011 voters were asked whether they wanted the powers of the National Assembly for Wales to be extended. They were able to judge the merits of this because the new powers were specified in advance.

In the AV Referendum of 2011 voters were asked if they wanted to replace the existing voting system for the House of Commons. They were able to judge the merits of this proposal because the legislation set out how the precise rules of how AV would have worked.

2.8. In any Scottish Referendum voters will be asked, in one form or another, whether they want Scotland to leave the UK. How can they judge the merits of this proposal without some indication of the likely relations between a Scottish State and the rest of the UK, let alone with the rest of the world (such as membership of the EU, etc.); the likely financial position of a Scottish State (what happens to the UK National Debt?); or the personal implications for themselves and any family residing outside Scotland?

2.9. The Scottish Affairs Select Committee has already identified a number of very pertinent questions which have not yet been answered.7 Until there is some information about these and other practical post-secession issues it would be impossible to hold a fair and decisive referendum. You cannot form Yes and No Campaigns for a referendum until you know what you are being asked to say “Yes” or “No” to. Holding a referendum would be like shooting Niagara Falls in a barrel, wearing a blindfold.

2.10. Obviously, some of these questions would never be finalised or exactly quantified unless there was a Yes vote for separation from the UK. But it would be possible to agree the broad outlines in advance—and doing at least that much would be an essential pre-requisite of holding any referendum, and far more important than the mechanics of arranging the ballot.

2.11. This is likely to take a considerable period of time. Autumn 2014 might, if anything, be too short a deadline. However that does provide additional time in which to address issues around the current PPERA framework (see Section 4) which ought to be resolved irrespective of whether a Scottish Referendum ever takes place.

Who sets the date?

2.12. Scottish Ministers clearly have their own reasons for their preferred Autumn 2014 date. It would be naive to pretend that referendums are not called for dates which politicians believe will favour them—but the experience of the North East and AV Referendums suggests that they are not always the best judges of this.

2.13. The Welsh Referendum of 2011 offers the closest parallel. In that case UK legislation8 empowered the National Assembly for Wales to trigger a referendum by a vote of two-thirds of the members. The mechanics for the Welsh Referendum, including the question and the determination of polling day, followed in subsequent statutory instruments issued by Parliament at Westminster.

2.14. There seems no good reason not to follow this precedent, or even to extend it by allowing Scottish Ministers to nominate a particular date. The Question (as vetted by the Electoral Commission) and the rules for the ballot would be set down in UK legislation. Sufficient progress would have to have been made with the “Unanswered Questions” before that UK legislation was enacted. Scottish Ministers would doubtless choose a date they thought favoured them—but they would still have to secure a two-thirds majority of the Scottish Parliament for it.

2.15. Experience in May 2011 indicates that a referendum can be combined with local and devolved elections. It is not clear, however, that this would have been true for a General Election. Neither can it be denied that local authority electoral services departments were under considerable strain in administering a referendum ballot at the same time as other elections. We experienced extreme delays in confirming the correct number of counting agents we could appoint—in some cases this was sent by post and not received until after the referendum had been held. It was difficult to reach people by telephone and emails were not always handled quickly. There were surprising problems in transferring the electoral registers from some councils.

2.16. That suggests it would be prudent to prohibit another combination of polls. Any delegated authority to the Scottish Parliament to call a Scottish Referendum should therefore also restrict it to that extent.

How long should the referendum period last?

2.17. The “referendum period” is the interval of time during which special legal restrictions and control apply. PPERA envisages it as lasting at least ten weeks9 and no more than six months.10

2.18. The referendum period for the AV Referendum ran from Royal Assent to 5 May (79 days). The lead-in time required to arrange the free mailing to voters meant that the No Campaign were obliged to pre-empt designation and place the order with printers before we knew that we had been designated as the official lead group on the No side. Even then we only just managed to acquire all of the local authority electoral registers in order to maintain our printing schedule and ensure that referendum addresses were delivered to the Royal Mail in time. If the No Campaign had been forced to wait until designation, eg if there had been a credible risk of a contested application, or if we had received insufficient donations to risk making the advance commitment, then it would not have been possible to have issued a leaflet to every voter.

2.19. PPERA should be amended to include a greater minimum duration for any referendum period. We note that the Electoral Commission has reached the same conclusion (see Section 6—Recommendation 11) and we are happy to endorse their proposals for a minimum 16 week period.

3. There Should only be a Single Question

3.1. In the UK referendums have always been structured as questions with Yes/No options between which the voter casts a single choice. That provides clarity both in terms of the debate (it becomes a straight choice between two options only) and the legitimacy of the result (by definition, one option must receive a simple majority). Where there are three or more options, it would be possible for the most popular choice to receive less than 50% of the vote and that would raise doubts as to its legitimacy, especially where there is no turnout threshold.

3.2. “Two Question Referendums” are technically separate, but conducted on the same day with the Second Question only becoming operative in the event of a particular result on the First Question. They have been held on two occasions:

Scotland in 1997 (the Second Question being whether any Scottish Parliament should have tax-varying powers); and

parts of the North East of England in 2004 (voters in County Durham and Northumberland were asked to vote on a reorganisation of local government if a regional assembly were to be approved).

3.3. In both cases “turnout” for the Second Question was lower than for the First, most likely because of a greater tendency of No supporters on the first ballot not to vote in the second. Certainly in the North East in 2004 the Second Question received less media coverage and attention, tending to be ignored or subsumed into the debate on the First Question. Neither official campaign on the First Question involved themselves in the Second. On the whole, for supporters of the No Campaign there was very little interest in the Second Question. But it is probably fair to say that some supporters of the Yes Campaign in County Durham and Northumberland did take different stances on the Second Question and that may have had an impact on their effectiveness on the First Question.

3.4. A Second Question would only be justifiable if it involves a genuinely subsidiary matter which is connected to the First Question and not a wholly distinct issue. Otherwise it will confuse the voters and prejudice the ability of campaigners to put their case effectively on one of the two Questions. That test was (more or less) satisfied in the North East in 2004 because the subject matter of the main referendum concerned the reorganisation of local government arrangements across the region.

3.5. The test is clearly failed if a Second Question for Scotland involved greater devolution (or, for that matter, less) within the UK.

4. PPERA Should be Revised Before any Future Referendum is Held

4.1. PPERA was first enacted in 2000. It has been amended in the intervening period, but not in respect of the referendum provisions. There have now been five official referendums (three, technically, in the North East in 2004) and two in 2011. It is appropriate to review how the rules work and, we contend, amend them in the light of experience. Although a Scottish Referendum ought to be fought under UK law, that PPERA framework ought to be improved before this takes place.

Generic conduct rules

4.2. At present PPERA provides a broad regulatory framework but the precise mechanics relating to the conduct of the ballot are left to one-off statutory measures enacted on each occasion. This is generally left very late in the day, creating uncertainty and administrative difficulties for returning officers. Most of the problems with the AV Referendum can be traced to this source.

4.3. It has been a longstanding recommendation of the Electoral Commission that the conduct rules should be placed on a permanent statutory footing, by inserting them as a new Schedule to PPERA.

4.4. This would have the effect of bringing PPERA referendums into line with referendums in England on the introduction of directly-elected Mayors. From the outset they have been governed by a series of standing regulations for the conduct of polls.

Shared expenses calculation rules

4.5. PPERA Schedule 13 sets out the provisions governing the declaration of referendum expenses. As they are drafted and have been interpreted they can lead to double-counting where two campaign groups share expenditure (eg for a joint rally) but both have to declare the same total spending.

4.6. Generally this has not been a practical issue in the past because the spending limits for referendums, especially where one of the groups involved was a designated lead group, were much higher than required for the campaigns concerned. It still represents a defect which ought to be corrected. Double-counting could be an issue in, say, a close-fought regional referendum where the spending limits are much lower (especially if, for one reason or another, the Electoral Commission are unable to designate lead campaign groups for both sides).

4.7. The AV Referendum was subject to a bespoke provision governing “spending in concert” which expressly reinforced this effect for groups which were not designated. The thinking was probably to prevent manipulation of the spending limits by requiring groups that acted in concert to each declare all of the expenditure involved. So far as can be known, the rule had no practical impact on the AV Referendum (although most of the campaign groups on the Yes side opted to file a joint expenditure return).

4.8. The Electoral Commission have recommended that the concert party rule apply to all future referendums, except where there are no designated organisations. The concert party rule did not apply to the Welsh Referendum, but equally, there were no designated organisations on either side. Instead, a large number of local groups registered as permitted participants on one side. There has always been a suspicion that this was an attempt to engineer a higher amount of spending above the limit applicable to a non-designated campaigner. If the Electoral Commission’s recommendation had applied for the Welsh Referendum, it would have had no effect.

4.9. The mischief which the legislation ought to prevent is evasion of the spending limits. The abuse which should be blocked is the creation of dummy organisations to qualify for additional spending capacity. The test should be whether different bodies are in substance the same organisation. That could be handled by strengthening registration as a permitted participant (PPERA section 106): requiring a declaration from the responsible person that the group is genuinely independent, supported by details of their separate bank account, payroll arrangements and administration.

Control of loans

4.10. The financial controls for referendum campaigners were originally intended to mimic those applying generally to political parties. Since 2000 PPERA has been amended to control loans to parties and Schedule 9 of the legislation which applied to the AV Referendum introduced them on a one-off basis. PPERA should be amended so that those provisions are permanently added to the legal provisions governing all referendums.

Grants to campaigners

4.11. PPERA section 108 permits the Electoral Commission to designate lead campaign groups on each side in a referendum. They are only permitted to designate for both sides together, not one side only (the “both-or-neither” rule). Once designated, a lead campaign group may issue a referendum address through Royal Mail and to make referendum TV broadcasts. It still has to pay for production, but delivery is paid for by the taxpayer and air-time is free.

4.12. Designated organisations are also eligible for grants from the Electoral Commission. This was a key recommendation of the Neill Committee, which advocated the provision of grants to referendum groups to cover “core funding” and ensure a level playing field between the two sides.11 The Neill Committee were particularly influenced by evidence that “the referendum campaign in Wales in 1997 was very one-sided, with the last-minute No organisation seriously under-funded and having to rely for financial support essentially on a single wealthy donor. The outcome of the Welsh referendum was extremely close, and a fairer campaign might well have resulted in a different outcome”.12

4.13. The payment of grants to both sides in a referendum predates the introduction of PPERA. In the 1975 European Referendum, £125,000 each was made available to the two lead groups. PPERA section 110 sets a maximum amount of grant that may be paid (£600,000) but otherwise allows the Commission to determine quantum and criteria on a case-by-case basis:

In the North East Referendum of 2004, grants of £100,000 were paid to both sides.

In the AV Referendum of 2011, the Commission decided on a maximum grant of £380,000 to reimburse “eligible spending”. This covered campaign infrastructure and specifically excluded campaign materials and activity. £114,000 was paid on designation, with the balance claimable on provision of evidence of expenditure. Due to the restrictive eligibility criteria, both sides only claimed in the region of £140,000-£150,000 each.

Similar rules would have applied in the Welsh Referendum of 2011, with proportionately lower amounts. No grants were paid to either side for the Welsh Referendum, but only because in the end no designation took place.

4.14. Thus, grants in the two 2011 referendums could not be used to finance the preparation of mail-shots to voters or official TV broadcasts. The result was less than satisfactory:

In the Welsh Referendum the No campaign decided not to apply for designated status, meaning no designation could be made on either side. Allegedly this was because they could not raise sufficient funds and wished to avoid being out-spent by a Yes campaign which could better exploit a higher spending limit. The result was that voters in Wales were denied the opportunity to hear fully from both sides.

In the AV Referendum the Yes campaign decided not to send a mail-shot to all voters. Allegedly this was because they ran out of money (although it should be said that they chose to send rather expensive literature).

4.15. What is the purpose of designation? It is to ensure that there is a reasonable presentation of the arguments on both sides. That is why the two lead groups are entitled to freepost mailing of their referendum addresses and TV broadcasts. Therefore, the grant should be paid to ensure that these two facilities are taken up, so that the public receives a minimum level of information.

4.16. Evidence from the AV Referendum indicates that the Yes Campaign spent about £427,000 on their (limited) mail-shot and perhaps a further £54,000 on TV broadcasts, making a total of £481,000 on designated status. That represented about 24% of their total declared spending and a little under 10% of their limit. The No Campaign spent £929,000 on their mail-shot to the whole UK and a further £139,000 on TV broadcasts, making a total of £1,068,000 on designated status. That represented about 43% of their total declared spending and a little over 20% of their limit.

4.17. There should be a matched-funding arrangement written into the grant provisions in PPERA section 110. The grant should be paid to reimburse 50% of a designated organisation’s spending on its mail-shot and TV broadcasts, up to a maximum of payment of £500,000 for a UK-wide referendum. Campaigns would still have to spend £2 in order to receive £1 of grant. That assumes that the cost of printing a reasonable mail-shot to every voter and preparing a basic TV broadcast would be £150,000. If a designated campaign spent less than this, it would receive a proportionately smaller grant, but if it spent more the grant would still be capped at £500,000. In this way designation would ensure that the public receive a reasonable minimum contact from both sides. That would still represent a reduction from the current maximum grant figure of £600,000.

4.18. If the grant were to be restructured in this way then it would solve the “problem” of one side making a “tactical non-designation”. Applicants would know that if successful they could cover half of the cost of designated status. But the grant would be pegged at only 10% of their spending limit.

Mis-use of public funds

4.19. PPERA section 125(1) prohibits publication of “material” which (a) “provides general information about a referendum”; (b) “deals with any of the issues raised by any question on which a referendum is being held”; (c) “puts any arguments for or against any particular answer” in a referendum, and (d) is “designed to encourage voting”. “Material” clearly includes information in any form, eg an interview, because “publish” is defined in section 125(4) as “make available to the public at large, or any section of the public, in whatever form and by whatever means”. It is not confined to leaflets which are printed and handed out at railway stations.

4.20. The PPERA purdah applies to Ministers of the Crown, government departments, local authorities and “any other person or body whose expenses are defrayed wholly or mainly out of public funds or by any local authority”. It applies only during the final 28 days of the referendum period. There are exemptions for the Electoral Commission, the BBC, S4C and designated organisations.

4.21. The objective behind PPERA section 125 is clear: to prevent undue influence of a referendum by the use of public resources. This was almost certainly to address lingering allegations that the 1975 European referendum was in some way rigged.

4.22. Section 125 has been an issue in two of the referendums fought under PPERA (and it is understood that it was also a concern in the Welsh Referendum, even if no cases were ever pursued). It is not fit for purpose:

In the North East Referendum of 2004 it became clear that there is no mechanism for adjudicating or enforcing section 125 against a Minister of the Crown.

The circumstances were that a Minister gave a newspaper interview two days before polling day to announce a change in government policy that would favour a North East Regional Assembly, were one to be approved. He considered this news to be a reason for voting Yes.

The then Chief Executive of the Electoral Commission claimed he had no authority over section 125 complaints, and that it did not apply to the conduct in question. The Propriety & Ethics Unit of the Cabinet Office informed the No Campaign that it had no powers to force a Minister to obey section 125.

In the AV Referendum, in regard to a taxpayer-funded campaign group, it became clear that the machinery of section 125 is too obscure and slow-working to provide any remedy even in a case that constituted a clear breach.

The circumstances were that a campaign group on the Yes side received a majority of its income from various public sector sources. They submitted a letter to the Commission in support of the Yes Campaign’s application for designated status. The group’s logo appeared on the Yes Campaign’s website as a supporter, and its own website publicised its support for a Yes vote.

The Enforcement Team of the Commission took until the 27th day of the purdah period to decide that there was insufficient evidence of breach. When pushed further, they claimed that although they had by then found such evidence, nothing could be done after polling day.

4.23. The purdah is the only legal restriction which applies to public authorities during a referendum. So far its deficiencies have not been significant because, broadly, the only breaches have involved participants on the losing side. There are strong grounds for amending it in any event, but it should be obvious that a Scottish Referendum raises particular concerns because there are likely to be at least two public authorities (the UK Government and the Scottish Executive) on opposite sides. Section 125 as it stands should be replaced by a new measure with the following provisions:

It should continue to apply to Ministers of the Crown, government departments, local authorities, public bodies and organisations who receive a majority of their resources from public funds (retaining exemptions for the Electoral Commission, the BBC, S4C and either designated organisation).

“Public funds” should include EU funding, which is currently ignored altogether.

A 28 day purdah period is too short. The Electoral Commission’s longstanding view is that the purdah should run from the start of the referendum period.13 A sensible and principled compromise would be for it to start on the day after designation of the official Yes and No Campaigns—or the Commission decides that it cannot designate (for whatever reason). Designation creates official groups entitled to public money. That is an obvious point for restricting any other form of publically-funded interventions.

Breach should create an offence (which it does not at present). The Electoral Commission and anyone eligible to vote in the referendum should be able to refer a case to the courts.

It should prohibit expressing or providing support for one side in a referendum as well as the activities currently forbidden. (In the case of Ministers, this restriction would apply to them in their official capacity, not party political activity, but that merely reflects the current position on, eg electioneering.)

It should clarify that the purdah extends to placing information in the public domain in any form and does not allow designated organisations to publish material or information on behalf of an individual or body which would be prohibited if that individual or body published it directly.

5. The Draft Bill Proposed by the Scottish Executive is Inadequate

5.1 The following comments are based upon a cursory review of the Draft Bill published by the Scottish Executive as part of its consultation exercise for calling a Scottish Referendum.

The proposed question

5.2 Unlike a PPERA referendum, there is no explicit provision in the Draft Bill for the Electoral Commission to advise on the intelligibility of the Referendum Question. That omission should be remedied.

5.3 The initial proposed question in the Draft Bill is.

Do you agree that Scotland should be an independent country?

5.4 This is unacceptable. The arguments which led to a redrafting of the AV Question are equally applicable here:

“Do you agree...?” is a loaded question.

It does not make the consequences of a Yes vote sufficiently clear, but assumes that the voter understands it to be the case.

Independence as a concept is only meaningful as independence from something, and that something (the UK? the EU?) should be made plain on the face of the question.

Many people would consider that Scotland already is a “country”, with its own distinct legal and governance system. It clearly already has a different status within the UK compared to, say, Northumberland or Surrey.

5.5 Therefore, a better-phrased Question would be.

Should Scotland leave the United Kingdom?

5.6 Ultimately, however, the final wording of the Question should be settled by the Electoral Commission, not Ministers. That is one of the reasons why there is an Electoral Commission in the first place.

No grants for campaigners

5.7 The Consultation Document proposes that no grants will be made to designated organisations. No rationale is given for this decision. It creates the risk of not providing the voters of Scotland with the full and equal information from both sides that they deserve.

5.8 In addition to the arguments of principle advanced by the Neill Committee in 1998, and never challenged, it is established practice to make grants available to campaign organisations. A failure to do so must raise questions about the good faith of Ministers to ensure a fair and equal contest between the two sides.

5.9 The proposals for the Referendum already concede the principle that there will have to be some outlay of public money for campaigners, since Draft Bill Schedule 4, paragraph 7 envisages a reimbursement of the cost of postage for the referendum addresses (although as drafted, that provision seems unworkable—see below). It would be better if the proposals put this on a more principled footing.

Position of the Counting Officer

5.10 The Consultation Document states that the Convener of the Electoral Management Board is “likely” to be appointed Chief Counting Officer for the Referendum (Paragraph 2.5), and views are invited upon this suggestion as if it were a firm commitment.

5.11 However the Draft Bill is silent. It merely gives Ministers a power to appoint anyone as Chief Counting Officer (Clause 4(1)). They also have a power to remove the Chief Counting Officer “if they are satisfied” there are grounds of inability to perform the functions due to physical or mental health or disability. There seems to be no basis for challenging Ministers’ grounds for reaching such a conclusion.

Control of loans

5.12 Why are there no provisions in the Draft Bill equivalent to Schedule 9 of the legislation which applied to the AV Referendum (control of loans to permitted participants)?

Referendum freepost delivery

5.13 Draft Bill, Schedule 4, paragraph 7 covers a designated organisation’s right to send referendum address post free. It appears to be unworkable.

5.14 The provision states that a designated organisation can recover the cost of postage from the Electoral Commission (on what authority?). In contrast, PPERA Schedule 12, paragraph 1 entitles a designated organisation to send referendum addresses “free of any charge”, with the cost settled direct between Royal Mail and the authorities. That is an important difference.

5.15 There is a cash-flow problem for the campaign if it has to pay for the cost of postage and then claim reimbursement. The upfront cost is likely to be greater than its spending limit for the entire referendum, and perhaps twice as much. Presumably, by virtue of Draft Bill Schedule 4, paragraph 11(2)(a) the mailing cost would not count as a referendum expense, and by virtue of Schedule 4, paragraph 32(1)(a) the reimbursement would not count as a declarable donation, but as drafted the Bill’s operation is still a clumsy way of doing things.

5.16 It is unrealistic to expect a campaign to raise an additional amount equal to more than its spending limit, spend it upon postage and then reclaim funds from the Electoral Commission which it cannot use for referendum purposes. The alternative, borrowing the money, is equally unattractive. Not only would the designated group still incur considerable referendum expenses (either actual or notional, depending on the rate of interest charged on the loan), but it is obviously undesirable for political campaigns to be financed by non-declarable loans rather than declarable donations.

5.17 As worded, the provision only makes sense for an organisation which would be politically active after the Referendum and could use the reimbursement for other projects, ie a political party.

Referendum broadcasts

5.18 Draft Bill Schedule 4, paragraph 11(1) states that all of the costs of production of referendum broadcasts are to be regarded as referendum expenses. Thus, the Draft Bill clearly envisages that there will be broadcasts on behalf of both sides. However, there is no equivalent of PPERA section 110(4)(c) which entitles a designated organisation to free air time for its broadcasts. Thus the value of air-time for any broadcasts would count towards the spending limits. That would be unworkable.

5.19 Even if airtime was to be provided free by broadcasters on a voluntary basis, under the Draft Bill that would constitute a donation and notional expenditure. The exemption for public funds would not apply to commercial broadcasters and, as defined, neither the BBC nor Channel Four would count as “public funds”.

5.20 It is possible that the Scottish Parliament is not considered to have the legislative competence to unilaterally require broadcasters to devote free air-time to referendum broadcasts. That problem would, of course, fall away if the Referendum were to be held under the PPERA framework.

The amount of the spending limits

5.21 The Draft Bill includes two features (Schedule 4, paragraph 19) not present in PPERA.

5.22 The spending limit for a designated organisation is additional to the limit which would apply if it were a non-designated campaigner:

Therefore, if a political party were designated as a lead group on one side, it would have a £1,000,000 spending limit, but if a non-party or cross-party group were designated to lead the other side, it would have a spending limit of only £800,000.

This is clearly wrong as a matter of principle. Furthermore, it creates an incentive for political parties to take the lead roles on either side in the Referendum. That risks tainting the Referendum by making it a partisan dispute, instead of a national conversation above party.

5.23 The flat rate spending limit for political parties is linked solely to being represented in the Scottish Parliament at the start of the referendum period, not to share of the vote:

There is nothing to prevent a party engineering an artificial “split” for the duration of the Referendum. A party with, say 2 MSPs, could temporarily engineer twice the spending limit of a party with, say, 69 MSPs. This is an obvious loophole.

By linking a party’s spending limit to its share of the vote, PPERA ensures a rough-and-ready connection between spending and the level of public support each party can claim to represent. PPERA is not perfect but it is better than the Draft Bill provisions, which favour well-financed but unrepresentative political parties.

The calculation of declarable spending

5.24 The Draft Bill contains a provision governing “expenses incurred as part of a common plan” (Schedule 4, paragraph 20). Where expenses are incurred as part of a “plan or other arrangement” among groups on the same side, each group has to declare all of the spending as counting towards its total. There is no distinction between the status of the groups, ie whether designated or not. This appears to be based upon a specific provision about “concert parties” which applied in the AV Referendum.

5.25 The test in the Draft Bill is whether groups are working to a common plan. That is misconceived. In any well-run referendum there will always be some form of plan or co-ordination between sympathetic groups on the same side. The need for contact and co-operation will be even more acute if, say, there are a number of different political parties on one side who are more used to opposing each other. But the risk is that as soon as they try to reach a sensible plan for fighting the Referendum, all of their expenditure becomes double-counted and they exceed their overall limit. Paragraph 20 as it stands is unworkable.

The purdah applicable to public authorities

5.26 The equivalent of PPERA section 125 in the Draft Bill (Schedule 4, paragraph 26) is confined to Ministers and parts of the Scottish Administration, the Scottish Parliamentary Corporate Body and local authorities. There is no equivalent for grant-funded organisations that are not public bodies. That creates an obvious loophole for the mis-use of public resources. A campaign group or body wholly or mainly dependent upon taxpayers’ money could be financed to support one side in the Referendum (and this would arguably not rank as a reportable donation, due to the exemption in Schedule 4, paragraph 32).

5.27 The Draft Bill has managed to take the PPERA section 125 purdah and produce something even less fit for purpose.

6. Electoral Commission Recommendations

The Electoral Commission’s report into the AV Referendum14 contained a series of recommendations which summarised their views of the two referendums of 2011. For completeness, we attach our response.

Future referendum legislation

Recommendation 1—Timing of legislation for future referendums

In planning for any future referendum, the UK Government should aim to ensure that there is confirmation that a referendum will take place (either by Royal Assent to a referendum Act or the making of an Order providing for a referendum) at least 28 weeks in advance of the proposed polling day.

Recommendation 2—Amending the legal framework for future referendums

The UK Government should amend the framework for future referendums held under Part 7 of PPERA to reflect the lessons learned from the delivery of the March and May 2011 referendums.

Recommendation 3—Providing greater certainty about the detailed rules for the conduct of future referendums

The UK Government should use the powers provided to the Secretary of State in section 129 of PPERA to make a generic order providing for the conduct of any future referendum.

These three recommendations essentially make the same point: that there ought to be a standard set of referendum rules with a minimum timetable for the referendum period. We agree with this principle.

Recommendation 4—Considering the implications of holding future referendums on the same day as scheduled elections

The UK Government and Parliament should continue to consider proposals in future to hold a referendum on the same day as another set of polls by on a case-by-case basis. If it introduces proposals to Parliament in future to hold a referendum on the same day as another set of polls, the UK Government should also publish at the same time its assessment of the implications of holding the polls on the same day.

This recommendation is naïve. Referendums will always be timed for a moment which the responsible minister (in 2011, Nick Clegg) believes provides maximum political advantage.

Voter information at future referendums

Recommendation 5—Ensuring intelligible questions for future referendums

If any significant changes are made to the proposed referendum question during the passage of any future referendum Bill, the revised question should be re-considered by the Commission before Parliament concludes its consideration of the legislation.

We agree. We would like to congratulate the Electoral Commission in their successful re-writing of the original, unacceptable, 2011 Question.

Recommendation 6—Ensuring appropriate use of public money in informing voters about the referendum

The prohibition on publication of promotional material about the referendum by publicly-funded bodies or individuals should commence at the same time as the beginning of the referendum period for future referendums, but activities carried out by Counting Officers, under any statutory duty to promote participation and in accordance with the CCOs directions, should be exempt from the prohibition on the publication of referendum material by publicly-funded bodies or individuals.

We agree. See further our comments under Section 4.

Improving the experience for voters

Recommendation 7—Ensuring accessible voter materials for future referendums and elections

The UK and Scottish governments should ensure that the modifications specified by the Chief Counting Officer to key voter-facing forms and notices for the May 2011 referendum are reflected in legislation for future elections and referendums. The Government should also provide powers for the Electoral Commission or other relevant statutory officer holders to specify modifications to the format, layout and wording of key voter-facing forms to ensure usability and intelligibility.

We agree. Standardisation of forms and notices for use by voters will reduce production costs and encourage a greater range of suppliers. At present Electoral Reform Services Limited controls an alarming proportion of the market.

Recommendation 8—Ensuring access and confidence in the voting process at future referendums and elections

The UK Government should introduce legislation to make clear that eligible electors who are entitled to vote at a polling station and who are in the queue to enter the polling station at the close of poll will be allowed to vote, and that it should be the responsibility of (Acting) Returning Officers rather than local authorities to designate polling places for polling districts at UK Parliamentary elections, and that any public building may be available for use as a polling place. We also want the UK Government to bring forward proposals for a comprehensive electoral modernisation strategy.

We agree to an extent. The suggestions about electors-in-the-queue and improved opportunities to vote for service personnel and overseas electors are clearly right. However, the suggestion that Returning Officers acquire responsibility for siting polling stations is naïve. Where the location of a polling station is a locally contentious issue then transferring the responsibility to the Returning Officer would risk the politicisation of their position. We are not convinced that the 2011 elections and referendum provide any evidence to support any change.

We reserve our position on “electoral modernisation” until we know more about the precise proposals. Do they extend to the introduction of vote-counting machines?

Recommendation 9—Ensuring access and confidence in the postal voting process at future referendums and elections

The UK Government should introduce legislation to enable Electoral Registration Officers to request corrected or refreshed personal identifiers from absent voters at any time in addition to the current required five-yearly refresh, and require Returning Officers to provide information about electors whose postal votes were rejected due to a mismatch of personal identifiers so that Electoral Registration Officers can request corrected or refreshed identifiers or, where necessary, further investigate possible electoral malpractice.

We agree.

Campaigning at future referendums

Recommendation 10—Timing of legislation

We recommend that the Government ensure that there is a period of at least 12 weeks between the campaign rules being finalised and the start of the regulated referendum period. This period would allow the Commission to complete, publish and distribute guidance and give campaigners an opportunity to become familiar with the guidance before the rules come into effect.

Recommendation 11—The referendum period

We recommend that at future PPERA referendums the statutory minimum referendum period should be at least 16 weeks, consisting of the current 28 day designation application period, the current 14 day designation decision period, and a minimum of 70 days between the final date for the designation decision and polling day. This would give designated lead campaign groups more time to plan and use the benefits that PPERA makes available to them in order to put campaign arguments to voters.

We agree with these proposals, which essentially repeat or expand Recommendation 1.

Recommendation 12—Designation of lead campaign groups

We recommend that:

When considering the case for future referendums, legislators should take into account whether the referendum is likely to stimulate a level of debate which would generate willing and able applicants for designation. However, this step would not in itself ensure that such campaigners will seek designation at a particular referendum in future.

The Government should take steps to reduce the potential advantages to a prospective lead campaigner of deciding not to apply for designation.

We do not agree with this recommendation, which would create a dangerous weakening in the neutrality of referendum campaigning. The “both-or-neither” rule of designation is a core principle of UK referendums.

Recommendation 13—Grants to designated lead campaign groups

We recommend that the Commission’s ability to pay grants to designated lead campaign groups in instalments be confirmed for future referendums.

We agree, but consider that this recommendation misses the point about the role and quantum of Electoral Commission grants.

Recommendation 14—Expenditure limits for registered campaigners that are subsequently designated as a lead campaign group

We suggest that the Government consider whether the legislation on spending limits for registered campaigners that are designated as lead campaign groups should be clarified for the avoidance of any doubt at future PPERA referendums.

We agree. This recommendation appears to flow directly from a concern which we raised with the Commission ourselves.

Recommendation 15—Expenses incurred by persons acting in concert

We recommend that the Government consider amending the ‘acting in concert’ provisions to remove or relax them in cases where there are no designated lead campaign groups.

The Commission have missed the point about concert parties—see Section 4.

Recommendation 16—Expenses exclusion for the media

Subject to any further consideration by Parliament of how the regulation of political campaigning should apply to the media in general, we recommend that the clarification that press comment is not subject to spending controls should be incorporated into PPERA for future referendums.

We agree. Our position on the regulation of the media is reserved.

Recommendation 17—Regulation of loans

The Government has powers to introduce loan controls for referendum campaigners, and for candidates and non-party campaigners at elections, via secondary legislation. We understand that that Government intend to do this and we recommend that the relevant secondary legislation be brought forward as soon as practicable.

We agree that it would be sensible to align the position of third party campaigners with referendum campaigners and political parties. It would also be sensible to enshrine loan controls within the wider PPERA framework rather than one-off measures.

Recommendation 18—Reporting donations

We recommend that the Government consider the options for an element of prepoll reporting of donations, and introduce a suitable provision for future referendums. Once the loan controls for referendum campaigners are in place, as recommended above, we recommend that such a pre-poll reporting requirement should also apply to loans.

We disagree. Our views on this issue have changed, as a result of our experience. We now consider that legislative change along all of the lines suggested by the Commission would be unworkable, counter-productive and probably futilefor pre-referendum period donations. But there should certainly be earlier reporting of donations made during the referendum period.

Recommendation 19—Restriction on publication of material by publicly funded organisations

We understand that the Government may wish to revisit the overall scope of section 125 to clarify it. We recommend that this review should consider what, if any, sanctions should apply to breaches of this provision.

We agree. We do not agree with the account which the Electoral Commission have given of their performance following our complaints.

Recommendation 20—Regulation of campaign arguments

We invite the Government and Parliament to confirm that a role in policing the truthfulness of referendum campaign arguments would be inappropriate for the Commission.

We agree. There already exist 45 million people with the function of policing the truthfulness of campaign arguments. They are called voters.

The delivery of future referendums and elections

Recommendation 21—Ensuring an effective management structure for future referendums

The UK Government should establish a standard management structure for any future referendum held under the PPERA framework, reflecting the structure in place for the May 2011 referendum.

Recommendation 22—Supporting the effective delivery of future referendum polls by Counting Officers

The Chief Counting Officer for any future referendum should communicate to Counting Officers and referendum campaigners details of the proposed approach to overseeing the delivery of the referendum no later than six months before polling day, including details of: the key directions which COs will be required to follow; the policy and process to consider request by COs for exceptions to the CCO’s directions; and the process for monitoring the performance and delivery of key referendum activities by COs during the months leading up to polling day. The Chief Counting Officer should also aim to ensure that detailed instructions and any supporting materials are issued to Counting Officers no later than four months before polling day.

Recommendation 23—Ensuring the efficient conduct of future referendum polls

The UK Government should ensure that the conduct order which should be in place for any future referendum allows observers who are properly accredited by the Electoral Commission to attend proceedings carried out by Regional Counting Officers. For a referendum where the Chief Counting Officer has appointed one or more Regional Counting Officers have been appointed, the rules should not require the certification or announcement of count totals at a regional level.

Recommendation 24—Improving the management and delivery of future elections

The UK Government should ensure that its review of the funding arrangements for elections to the UK Parliament and the European Parliament also considers the wider question of how to achieve an appropriate level of consistency and performance for all types of elections in the UK, building on the experience and lessons learned from the 2011 polls.

We have no strong views on these matters. We note they represent extension of the powers of the Electoral Commission. We are not convinced that the experience of the 2011 referendums provides any evidence, either for or against, an enhanced role for the Commission in other elections.

The funding of future elections and referendums

Recommendation 25—Improving the process for funding elections and future referendums

The UK Government should reflect on the experience of implementing this framework for the 2009 and 2010 elections and the May 2011 referendum to consider how the funding of future elections and referendums might be improved. For future referendums held under the PPERA framework, the UK Government should amend PPERA to give responsibility to the Electoral Commission for negotiation with Her Majesty’s Treasury on fees and charges for Counting Officers, as well as for receiving and administering claims from Counting Officers relating to the referendum.

We have no view on this matter. We note that it represents a further extension of the powers of the Electoral Commission.

March 2012