Scottish Affairs CommitteeSupplementary written evidence submitted by Electoral Reform Society

1. Introduction and Context

This written evidence to the Scottish Affairs Select Committee is submitted in support of the oral evidence given by attendance at the Committee on Wednesday 14 March 2012 of: Katie Ghose- Chair of Yes in May Ltd and CEO of Electoral Reform Society and Willie Sullivan—Head of Field Operations for Yes in May and Scottish Director of Electoral Reform Society.

We were invited to apply our experience of campaigning in the AV referendum in 2011 but also of our current roles at the Electoral Reform Society. The Committee Chair drew our attention to the evidence submitted by No to AV Ltd and stated that he would assume we agreed with their submission unless we noted in writing otherwise. In this submission section 3 is a specific response to that request, where sections of the No to AV submission with which we disagree are inserted in italics and our reasons for disagreement stated.

2. Executive Summary

2.1 We consider a referendum on independence to be within the mandate of the SNP Government in Scotland but believe that the proposition and timing of such a referendum should be decided by the Scottish Parliament with the question, planning and organisation of the poll managed by the Electoral Commission in Scotland under the framework laid out in the Political Parties, Elections and Referendums Act 2000 (PPERA), but reporting to the Scottish Electoral Management Board and therefore the Scottish Parliament. The mechanisms and lines of accountability must be agreed between both Governments. We support the use of a Section 30 order under the Scotland Act 1998 to describe this.

2.2 We note that the Electoral Commission has recommended a number of changes to PPERA and we would support all of these. However currently the campaign rules etc governing a referendum are included in the primary legislation that sets the date, proposition etc for each poll. This means that the rules are not generic. We would support the development of a generic set of rules to be included in PPERA .

Key observations would be:

(a)That the rules should be known and understood by the campaigners as far out from the vote as possible- this would be solved if the basic rules were in PPERA.

(b)That the period between application and designation should be sufficiently long to allow proper planning and implementation of a proper campaign plan. ie printing of freepost.

(c)That the strategic decision of one campaign not to register as a lead organisation should not disadvantage the other side ie The No campaign failing to register in Wales meaning that the Yes campaign could not spend up to the limit of a lead campaign.

(d)The public grant is important but is too restrictive in only being allowed to be spent on administrative costs and not actual campaigning.

(e)That the broadcast media, particularly the public broadcaster, should have more of a defined responsibility in covering the debate.

3. Response to No to AV Evidence

As requested by the Chairman we have only noted where we disagree with this evidence

3.1 Any Scottish Referendum Should be Fought under PPERA

3.1 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).

3.1.1While we have no strong objection to this position and this is a tried and tested method we would suggest that the option of a parliament making a general proposition ie describing what is it they want to find out, and leaving the exact wording of the question to testing and consultation of the Electoral Commission should be considered.

3.2 How should the Scottish Referendum be authorised?

3.1 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.

3.2 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.

3.2.1We disagree with this and feel that a section 30 order allowing the Scottish Parliament to bring forward a Referendum Bill is the best way to authorize the referendum.

3.2.2The SNP secured an unprecedented majority in the 2011 election campaigning on their intention to hold a referendum. The Scottish Social Attitudes Survey 2011 found that 72% of people favour the Scottish Parliament making more decisions about issues that affect Scotland, up from 50% in 2010.

3.2.3All of these decisions should be made with the widest possible consultation, particularly with the Electoral Commission and other bodies experienced in running referendums and public information campaigns. Ideally anything that cannot be set out in PPERA would be reached in agreement between the two governments. However at this time that looks unlikely and if you were to ask us who has the greatest political and democratic legitimacy to make the decision it would probably not surprise you that the Electoral Reform Society feels that it is the Scottish Parliament whose representation more fairly reflects the votes of the Scottish people.

3.3 Who sets the date?

3.1 The Welsh Referendum of 2011 offers the closest parallel. In that case UK legislation [1] 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.

3.2 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.

3.3 This negates the parliamentary majority and mandate achieved by the SNP to hold a referendum under a proportional electoral system. This would be viewed as creating an undemocratic hurdle to holding a referendum.

3.4 There Should Only be One Question

3.4.1 While we acknowledge the clarity of a binary question we feel other considerations tip the balance away from this option. Detailed polling ie The Scottish Social Attitudes Survey 2011 seems to suggest that Scottish opinion sits on a continuum between “pre devolution settlement “ and “full independence” with larger clusters around the status quo, increased powers often termed “Devo Max”, and to a smaller extent, full independence.

3.4.2 We feel that given current debates and state of Scottish public opinion, the best way to find out where consensus might be found is to hold a two question referendum with a so called gateway question on Status Quo v Change and a second question on Devo Max v Independence. The result of the second question will only be relevant if the first question is a positive vote for change.

3.4.3 To hold a straight binary single question with the issue of more powers as an “off ballot paper issue” could threaten clarity of outcome. ie voters vote for the Status Quo when really they want more powers, or indeed vote for Independence because they want more than the status quo.

3.4.4 A similar system was used in the recent New Zealand Electoral Reform Referendum. The National Party’s 2008 election campaign promised a referendum, October 2009 saw the announcement of a referendum to be held on polling day 2011 (26th November, so a two year lead in). Voters were asked two questions:

The first question asked: Should New Zealand keep the Mixed Member Proportional (MMP) voting system?
The second question asked: If New Zealand were to change to another voting system, which voting system would you choose?

3.4.5 If at least half the voters opted to keep MMP, there was a section in the legislation providing for an independent review of MMP in 2012 to recommend changes that should be made to the way it works. The Electoral Commission in New Zealand are currently conducting that review. If the voters had voted in majority to change to another electoral system, then the government following the 2011 election may have called a second referendum to be held on or before the next general election. This second referendum, like in 1993, would allow voters to choose between the MMP system, and the alternative system that received the most votes in the 2011 referendum. The system that received the majority in the second referendum will become the voting system for the following general elections. FPTP was the winner of the other systems available to select (preferentially). So, there could have been a second referendum to choose between MMP and FPTP with the result that even though people could have voted in 2011 to go away from MMP, they weren’t committed to changing away from it until the second referendum. Of course as it happens the vote was in favour of keeping MMP.

3.4.6 We feel that both questions should be asked on the same day on the same ballot paper as there is merit in voters being able to compare three relative alternatives at the same time during the same campaign. That said, no method of discovering voters’ views is entirely risk free. Although extremely unlikely, in our recommended system there could potentially be an outcome where people only vote on the first question and hence those voting for a particular system are fewer than those who have voted for no change. It will be important to advise voters to use both of their votes in this situation. However disparity of turnout between two questions is actually more likely should they be asked at different times.

This is a rapidly evolving debate and we will keep our preferred option under review by continuing to analyse how voters can be given the best opportunity to express their views on all the options that command significant public support.

3.5 Grants to Campaigners

3.5.1 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.

3.5.2 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.

3.5.3 We agree there are problems with the grant system. However to match fund spending only multiplies advantages given to rich campaigns. We would suggest that a set and equal grant is given to both sides but is available to use on any reasonable campaign spending ie Freepost, Leaflets, Advertising, Broadcasts. A maximum of £500,000 for a UK Referendum is a good benchmark figure.

3.6 The Electoral Commissions Recommendations

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.

3.6.1 We disagree with No to AV Ltd and agree with the Electoral Commission on this. It should not be left to one side or the other to decide unilaterally whether campaigns can spend adequate amounts of money.

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 these lines would be unworkable, counter-productive and probably futile.

3.6.2 We disagree with No to AV Ltd and agree with the Electoral Commission on this. Who donates and how much is given to a campaign may form an important part of a transparent debate and effect who the voters might wish to support.

4. What are the Problems with Other Question Formats Proposed

4.1 There are many alternative options to structure the vote being proposed and considered with perhaps four main ones currently attracting support:

(a)That there is just one question on status quo v straight independence with a future debate and possible referendum question on Devo Max v Status Quo sometime in the future.

(b)That the gateway question (Status Quo v Change) is put first with a period of time between asking the change v no change question and the Devo Max v Independence question.

(c)That there is a Status Quo v Devo Max question put first with a period of time elapsing before the Devo Max v Independence question is put.

(d)That there is a first question of Independence v Status Quo and then a second question of Devo Max v Status Quo or Devo Max v Independence on the same day.

4.2 Generally we feel that any format that does not allow all three main options to be considered during the one campaign is unsatisfactory. There is also the danger with time separated referendums that turnout varies drastically and makes results less clear.

4.3 Specifically:

Option (a) is problematic for the following reason: If a voter had to weigh up the choice between Independence and Status Quo and felt very strongly that they wanted more than the Status Quo but not really full Independence they may vote for full Independence as the least worst option. As they have chosen the furthest move possible they cannot go back to a position of lesser powers.

Option (b) is problematic because we feel the debate around the nature of the change should be on offer at the same time as the electorate are asked to choose between change and the status quo.

Option (c) still maintains the problem of comparing the alternatives at different points in time. However it does at least allow voters to choose increased power on an incremental basis. So they can vote for Devo Max but if they think this is insufficient vote for Independence in the next referendum.

Option (d) Solves the problem of relative comparisons at the same point in time however if both Independence and Devo Max received a majority vote there could be confusion over the result.

4.4 There are views that referendum campaigns are most informative and most clearly conducted around binary questions. That the debate is clearer is unarguably true. However we know that voters are often asked to decide from amongst a range of parties all presenting complex policy platforms. We feel that the prominence of the issue and the quantity of specifically Scottish mass media mean that this risk is bearable.

5. Expenditure

5.1 The AV referendum was very different from the forthcoming Scottish Independence Referendum. The level of media and wider engagement in the AV debate was limited. The campaigns had to work particularly hard and spend a lot of money to get any attention. We would envisage the level of media interest will be considerably higher in this referendum, indeed it probably is already greater now in Scotland than it was at the height of the AV referendum. We feel it should be up to the campaigns to challenge each other, and for the media and the wider civil society to challenge the campaigns. Campaigns communicate partisan messages from particular positions. We feel it is important that the public receives both sides of the debate and therefore large imbalances in campaign spending do the voter no favours. In this particular referendum we would recommend relatively low limits on spending (those recommended in original Scottish Government consultation of £750k for a lead organisation and £250k for a political party seem reasonable) and to rely on the broadcast media to take the debate to people.

6. Wider Experience of the AV Referendum that Might be Relevant to the Scottish Referendum

6.1 There are of course some significant differences between the two referendums. Not least the Government imposed a straightforward choice between status quo and one other option (AV) in the AV referendum—albeit many would like to have seen other options on the table. We argue public opinion in Scotland clusters around a number of options which should be included on the ballot. Additionally, as mentioned, AV did not attract the wide-ranging prominence that the constitutional debate in Scotland has at the moment.

6.2 We do know from work that Professor John Curtice did for us examining what was significant in why people voted the way they did that Party cues seemed to be very important. ie The leader of the Conservative party helped move well over 90% of Conservative identifiers to the NO position when he entered the debate. Labour voters received confused cues and mostly voted for NO change.

6.3 The debate on both sides was roundly criticised by many as being uninformative and highly negative however we would suggest that the timescale and the inability to engage media and voters meant this may have been inevitable.

6.4 In such circumstances it is perhaps no wonder that rather than attempt to make their own mind up people looked for a cue from the party they supported as shorthand for what to do. The AV referendum debate was almost always presented through the prism of the dynamics within the Coalition Government and not about the issues on merit or otherwise. In the Independence referendum, one lens will inevitably be the fortunes of the Scottish parties but we do think, judging by the standard of coverage thus far, that there is more chance of debate focusing on the issues themselves. The early involvement of the widest range of civil society organisations will be crucial to engaging as many voters as possible and especially those who do not identify with any one party.

6.5 Arguments and debates take a long time to disseminate into the wider culture and popular consciousness. We feel that issues require to be presented through a range of media and sources and views are only settled after a period of evidence gathering and consideration. In Scotland the debate has mainly been about process and will be until that is agreed. We then have some complex issues around definitions ie devo max, federalism, Monetary Union which deserve a public debate with the referendum as a spur to a focussed discussion. This will take time.

6.6 In contrast, despite the complexity of the question in the Welsh Referendum on more powers held last year, research by Yougov showed that most people voted mainly on their position on the constitution. This was a referendum that was announced in 2007 as part of the Welsh Assembly Coaltion agreement and the all Wales Convention was set up in October of that year charged with informing the voters over a two year period about the existing devolution settlement and gauging support for further powers . The Welsh Referendum Survey conducted by the Wales Governance Centre and YouGov, using a rolling weighted sample, has indicated that the clearest predictor of voters behaviour in the March 2011 referendum was their constitutional preference, which was far more important to voters’ behaviour than social class, identity and so on.

6.7 As Richard wyn Jones and Roger Scully put it in a recent book:

“To some extent, voting choices were influenced by individuals‟ party attachments, and by their perceptions of the effectiveness of the devolved institution. But most important seem to have been basic attitudes towards how Wales should be governed”.

7. When Should the Referendum be Held

7.1 Our experience from the AV referendum is that proper debate, analysis and questioning of the arguments takes a good deal of time. Campaigns will present misinformation and partial arguments which can only be challenged and bottomed out over significant timescales.

7.2 Already as the debate begins there are emerging partially formed concepts and positions that are best developed and tested in the forum of public debate. The extension of these concepts and positions into full public awareness can be a long drawn out process.

7.3 Therefore, we would favour a longer time for arguments to be fully tested and worked through, and for public information and arguments to disseminate into the public consciousness. We would add that a rushed referendum with a result that Scots did not feel confident in, would cause greater uncertainty than allowing a sensible period for learning, debate and due consideration. This is an important decision; it should not be rushed, but should be made thoughtfully and in a fully informed fashion.

7.4 It is also important that all Scots who wish to are able to participate in the poll. As there is due to be a household canvass in early 2014, later in that year will be an ideal point to use an accurate and complete register. To hold the referendum prior to that canvass will result in using an out-of-date register which could lead to subsequent challenge and devalue the result of the referendum.

8. Who Should be Allowed to Vote—Franchise

8.1 We think that the most straightforward franchise is the residency requirement as used in Scottish Parliament Elections. We acknowledge the interest of Scots or recent Scottish residents who now live outside Scotland in the referendum, but to change the definitions at this moment would mean re-assessing the franchise nationwide. For instance, given the impact on decisions made in the UK capital of London, should all UK voters be able to vote in the mayoral elections?

8.2 We support the extension of the franchise to 16 and 17 year olds for all UK elections. Why should this group not be allowed to vote? Most politicians support universal suffrage—for this section of the citizenry not to be offered representation that they can vote for is in our view a democratic deficit.

8.3 We see no reason why, given the importance of this referendum vote, that the franchise should not be extended in time for the referendum. The debate has been had, representatives of most major parties in Scotland are in favour, and this is an ideal time to make it happen. We are clear however, that this should not be done only for the referendum but for all public elections in Scotland. Additionally, we would not wish to see a “false franchise” established by only allowing “attainers” to vote rather than all 16 and 17 year olds. Given the franchise is a reserved matter we would hope the UK Government would work with the Scottish Government to provide for this. As there will be a UK wide household canvass now in early 2014 as part of the Individual Electoral Registration reforms, we would suggest this could be an ideal opportunity to extend the franchise. Regardless, it is vital this canvass be as complete as possible in order that as many people as wish to be are registered to vote in the referendum.

8.4 Why not use the Westminster Franchise? We feel that the Scottish Parliament franchise is more complete and this is franchise from which the mandate arose to hold this referendum, and is the franchise that was used for the 1997 devolution referendum. The Welsh referendum on more powers also used the assembly franchise.

8.5 Finally, we would point out that the franchise should certainly not be decided on the basis of how voters might use their vote.