Scottish Affairs CommitteeSupplementary written evidence submitted by the Electoral Commission

1.0 This note provides additional information to supplement the Commission’s oral evidence to the Committee on 21 March 2012. It covers:

The Commission’s comments on proposed changes to the PPERA referendum rules set out in the written evidence submitted by No Campaign Limited.

Regulated periods at elections and referendums.

Designating lead campaigners at multi-option referendums.

North East of England referendum.

The Commission’s Comments on Proposed Changes to the PPERA Referendum Rules in the Written Evidence Submitted by No Campaign Limited

1.1 As the Committee requested, we have set out below our comments on the points made by No Campaign Limited in their written evidence under the heading “PPERA should be revised before any future referendum is held”.

Generic Conduct Rules

1.2 Our 2011 referendum report1 recommended that for all future referendums held under PPERA the detailed rules for the administration of the poll should be set out in a single generic order (recommendation 3). This would enable those running and planning to campaign in the referendum to prepare with confidence. No Campaign Limited appear to support this recommendation.

Shared Expenses Calculation Rules

1.3 The PPERA rules on campaigning at referendums do not include restrictions on campaigners working together. People wishing to exceed the spending limits could therefore set up multiple campaign groups which could work together, pooling their spending limits to promote a joint campaign. The legislation for the 2011 referendum on the UK Parliamentary voting system dealt with this by providing that where different campaigners campaign together, all the spending they incur counted separately against the limit of each campaigner involved (so if two campaigners each spent £50,000 on a joint campaign, each had to count £100,000 against their spending limit). These anti-evasion rules were modelled on the PPERA rules on third-party campaigning at elections.

1.4 These rules did not apply to campaigners working together with designated lead campaign groups—so as to allow scope for “umbrella” campaigning co-ordinated by a designated lead campaigner. Our report on the 2011 UK referendum noted2 that if we had been unable to designate lead campaigners at the referendum, these anti-avoidance provisions could have artificially constrained the ability of a group of campaigners who all support the same outcome to put their arguments to voters. We therefore recommended that at future referendums, the anti-evasion provisions should be relaxed in the event that it was not possible to designate lead campaign groups. We also flagged this issue in our March 2012 response to the UK Government and Scottish Government consultations on a Scottish referendum.3

1.5 The written evidence of No Campaign Limited suggests an alternative approach, which would require those registering a campaigner to declare that it is “genuinely independent” and to show that its bank account, payroll arrangements and administration are separate from those of other campaigners. This may be an administrative burden on campaigners, particularly given the relatively short timetable for registration—the PPERA requirements for registering a campaigner are deliberately quite straightforward. However, a greater concern in our view is this approach would not adequately manage the risk of evasion. Any campaigner well-funded and motivated enough to wish to circumvent spending limits by setting up multiple campaigns would have no difficulty in setting up the separate administrative arrangements proposed by No Campaign Limited. The making of a false declaration as to a campaigner’s independence could be made an offence—but enforcing this would be complex, and probably impossible to resolve before the referendum took place.

Control of Loans

1.6 No Campaign Limited share our view (most recently restated in our March 2012 consultation response on the Scottish referendum)4 that loans to campaigners should be subject to the same restrictions and reporting requirements as donations.

Grants to Campaigners

1.7 At referendums held under PPERA, the Commission has discretion over the level and scope of the grant available to designated campaigners up to a statutory maximum of £600,000 for each campaigner. As set out in our report on the 2011 UK referendum5 when setting the grant value and terms and conditions for future PPERA referendums we will take into account feedback from campaigners at the 2011 referendums, including No Campaign Limited’s written evidence to the Committee as well as the feedback they provided to us after the 2011 poll.

1.8 Given the Commission’s discretion over referendum grants, PPERA would not need to be amended to enable grants to be made on different terms to those used at the 2011 referendums. At any future referendum where the Commission makes grants available to campaigners we will provide advance notice of the proposed main terms of the grants and the rationale for those terms, as we did at the 2011 PPERA referendums.

1.9 We note that the Scottish Government’s consultation on for a Scottish referendum proposed that no grants should be made available to designated lead campaigners.

Misuse of Public Funds

1.10 We recommended in our report on the 2011 UK referendum6 the current PPERA provisions on publicly funded bodies and the sanctions applying to breaches of the rules should be clarified. We have also flagged this issue, and commented on the Scottish Government’s proposals on this subject, in our March 2012 consultation response.7

1.11 We therefore share the view expressed in No Campaign Limited’s written evidence that the current PPERA rules need to be changed. However, we do not accept No Campaign Limited’s version of the enforcement issues at the 2011 UK referendum described in paragraph 4.22 of their written evidence, which conflates two separate alleged breaches of the rules. As we described in our report on the 2011 UK referendum,8 we concluded that the first allegation did not indicate a potential breach of the rules. The second allegation was only made on the day before polling day.

Regulated Periods at Elections and Referendums

1.12 The regulated periods for campaigning by political parties and non-party campaigners at elections are specified in PPERA, and differ from the regulated periods for candidate spending which are set out in the Representation of the People Act 1983 and in secondary legislation. The standard PPERA regulated periods (which can vary if the regulated periods for different elections overlap) are:

for UK Parliamentary general elections, the 365 days before polling day.

for elections to the European Parliament, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly, the four months before polling day.

1.13 The regulated period for a referendum held under PPERA is specified in the enabling legislation for each referendum. PPERA provides for a minimum referendum period of 10 weeks, but this can be reduced by an Order by the Secretary of State. The regulated periods for the referendums held in 2011 were:

for the referendum on the powers of the National Assembly for Wales, the period began on the day after the enabling Order was made. In the event the regulated period began on 16 December 2010 and ended on 3 March 2011, so covered a total of 11 weeks.

for the referendum on the UK Parliamentary voting system, the period began when the enabling Act received Royal Assent. In the event the regulated period began on 16 February 2011 and ended on 5 May 2011, so covered a total of 11 weeks.

1.14 However, in our report on the 2011 referendums9 we recommended that the regulated period for future PPERA referendums should be a minimum of 16 weeks, in order to enable designated lead campaigners to make use of the benefits available to them, such as free mailings. This recommendation reflected points that the lead campaigners at the 2011 UK referendum had put to us about their experiences.

Designating Lead Campaigners at Multi-Option Referendums

1.15 Our March 2012 response to the Scottish referendum consultations10 summarised the PPERA provisions on designation at referendums with more than two outcomes, and highlighted the possible implications for a Scottish referendum of our experience of designation at the 2011 referendums.

1.16 For referendums with more than two possible outcomes, the number of outcomes for which it will be appropriate to designate lead campaigners will depend both on how the question is structured, and on how campaigners are likely to structure their arguments in respect of the possible outcomes. In many cases these will be not just regulatory questions, but also political ones. As we have said in our March 2012 consultation response, it is vital that the legislation for a Scottish referendum sets out unambiguously both the outcomes for which lead campaigners may be designated, and what is to happen if suitable campaigners do not apply in respect of all such outcomes.

1.17 At the point when the legislation for any multi-option referendum is being developed, the Commission will take a view on which outcomes should have designated lead campaigners on a case by case basis, taking into account the principle that there should be no barriers to campaigners putting forward arguments for any of the possible outcomes. We will only be able to reach a firm view when the referendum question is finalised. We will then offer our view to the Parliament that is responsible for the relevant legislation. The final decision on which outcomes should have designated lead campaigners will of course be for that Parliament to take.

The North East of England Referendum

Two referendum questions

1.18 In November 2004 people in the North East of England voted in an all-postal referendum on the establishment of an elected regional assembly. In two-tier local government areas (areas with both district and county councils) an additional referendum was held on the potential structure of single-tier local government should there be a “yes” vote in the regional assembly question. Voters in the counties of Durham and Northumberland were asked to choose between two options (A and B) offering different structures of local government reorganisation.

1.19 In areas where two referendums were held, there were two separate ballot papers, each containing one question.

REGIONAL ASSEMBLY REFERENDUM BALLOT PAPER (N.B. NOT ACTUAL COLOURS)

LOCAL GOVERNMENT REFERENDUM BALLOT PAPER

Campaigning

1.20 In relation to campaigning and media focus on the local government referendum question, we reported11 the following.

The local government options campaign

1.21 “The local government question created a different dimension to the campaign and the designated organisations[ 12 ] chose largely to remain neutral on the issue. Both saw the local government question in two-tier areas as secondary and as a distraction from the regional assembly question. Four permitted participants registered to contest the local government question in Northumberland and County Durham… The campaigns undertaken by these groups consisted largely of the production and distribution of leaflets. These campaigns did receive media coverage, particularly in local weekly newspapers, although it was considerably less than that of the regional assembly question”.

Voter understanding

1.22 Following the referendum we commissioned qualitative research based on in-depth interviews with voters to explore their use of and reaction to the postal ballot packs. The research showed that, in areas where there were two referendums, most respondents had assumed they would be asked to vote “yes” or “no” to a regional assembly and were surprised to find themselves faced with a second question.

We reported that:

“In two-tier areas, many of those interviewed were unclear about what they were being asked regarding the creation of single-tier authorities and the choices [available]”.

1.23 The research found that the confusion with the local government referendum question was caused partly by a lack of prior knowledge or understanding about the proposed reorganisation of local government (if a regional assembly was established), and partly by voters failing to read the information provided prior to the ballot or engage with the explanatory information provided in the ballot pack at the time of voting.

April 2012

1 2011 referendum report - parliamentary voting system: http://www.electoralcommission.org.uk/__data/assets/pdf_file/0019/141328/Final-PVS-report.pdf available at http://www.electoralcommission.org.uk/__data/assets/pdf_file/0019/141328/Final-PVS-report.pdf

2 Ibid, paras 5.75-5.83

3 March 2012 response to referendum consultations paras 10.43-10.44, available at http://www.electoralcommission.org.uk/__data/assets/pdf_file/0011/146927/The-Scottish-referendum-Response-to-consultations.pdf

4 Ibid, para 10.51.

5 2011 referendum report - parliamentary voting system para 5.66.

6 Ibid, paras 5.101-5.104f

7 March 2012 response to referendum consultations paras 10.45-10.48.

8 2011 referendum report - parliamentary voting system paras 5.100-5.104.

9 Ibid paras 5.13-5.21.

10 March 2012 response to referendum consultations paras 10.30-10.39.

11 The 2004 North East regional assembly and local government referendums, The Electoral Commission, November 2005.

12 The lead “yes” and “no” campaigners on the regional assembly question.

Prepared 4th May 2012