Scottish Affairs CommitteeSupplementary written evidence submitted by Nigel Smith
PPERA and Spending Limits in the 2014 Referendum
While modern democracies routinely hold fair elections, fair referendums have proved more difficult. The difficulties take two forms. Representative legislatures tend see “bottom up” direct democracy as a threat so they introduce legal hurdles to obstruct its general function. As the UK has only just started making modest use of direct democracy in local government, this can be set aside. The second difficulty comes in “top down” referendums in which governments and legislatures try to rig specific referendums by legislation or conduct them in favour of a particular outcome. Sometimes simply an absence of rules has led to inconsistent conduct.
There were enough such problems in the UK between the fairly conducted European Community referendum in 1975 and the end of the devolution referendums in 1998 to heighten concerns about fairness. With the prospect of several more, the Labour Government asked Lord Neill to make recommendations for a generic act for major referendums setting out a broad framework for their consistent and fair conduct. Not all his recommendations were accepted but from them, PPERA was enacted in 2000. It was a great step towards fairness in UK referendums but as it has turned out not a complete one.
HMG’s recent Consultation on the referendum did not make absolutely explicit that PPERA is a generic Act. It notes without apparent alarm the Scottish Government’s commitment to a referendum “broadly based on PPERA” even though the proposals contain substantial and obvious deviations from it. For itself, HMG seems content to follow PPERA as “closely as possible”. If a generic act is to achieve fairness and allow both sides to show their hands are clean then PPERA must be “strictly” followed. It seems as if neither Government gets this specific requirement in the rush to provide a referendum made in Scotland.
HMG promoted PPERA as “well established, tried and tested rules”. Unfortunately the rules have been tried and found wanting in some important respects—not once but three times. Most of the shortcomings were already obvious in 2002 when nascent referendum campaigns tried to interpret the Act with the Electoral Commission in preparation for what was expected to be its first test—the euro referendum.
Of course the euro referendum was aborted but three other referendums have been held under PPERA. (They were the North East Regional Assembly referendum in 2004, law making powers in Wales and the AV referendum in the UK, in 2011). After each referendum, the Electoral Commission recommended that PPERA be amended and supplemented with a generic conduct order. Although its recommendations have remained consistent over eight years, no reform has been undertaken.
It would little short of foolhardy to hold a fourth referendum particularly one of such importance, without reform of PPERA. There is plenty time to do the job properly. And the reform must be entirely generic in nature. To amend PPERA for only the independence referendum is self-evidently an abuse the Scottish Government would be right to resist it.
Generic Rules
Before PPERA was enacted in 2000, all major UK referendums were conducted under individual legislation leaving them open to “rigging”. Notable examples in Scotland were the use of the 40% rule in favour of the NO campaign in the 1979 referendum and the use of public money in favour of the YES campaign in 1997.
Generic rules seek to remove any scope for rigging the rules during the legislative process of calling a referendum by leaving only the date and question open. The rules mean referendums can be called more quickly, bring clarity to those planning and running the referendum and fairness to all sides during it.
The Scottish Government is proposing to use PPERA but (in its own word) “tailor” it to the independence referendum. This completely misses the point of a generic Act—the rules cannot be tailored—only the date and question should be open to the authority calling the referendum (who ever that turns out to be).
By such “tailoring”, the Scottish Government invites comparison with the “rigging” charges of 1979 and 1997. There are several obvious deviations including a reduced spending limit to less than half the devolution campaign spending in 1997 and the removal of the core public grant to both sides made available in PPERA.
The Scottish Government is not being singled out over this as its behaviour is not unique. All governments and legislatures do this when they can. There lies the inherent fairness of a generic referendum Act.
Following PPERA as “closely as possible” is not sufficient. To achieve the required fairness PPERA must be “strictly followed”. The point bears repeating. The UK Government would be on strong moral and political ground by insisting on the strict use of the generic Act.
HMG should ensure PPERA used in Scotland without “tailoring” by the Scottish Government. To that end, it should undertake generic revision of the Act that would incorporate any of the Scottish Government’s desired amendments that have generic value for all future UK referendums. All others would be discarded. The Scottish Government could hardly object as the UK Government would rightly say they are simply drawing on the experience of three referendums so revision is timely, justified and fair to Scotland and UK.
PPERA reform
PPERA 2000 was the first stab at a generic set of rules for UK referendums. After each of the three referendums that it has conducted, the Electoral Commission has asked for revision of the Act to complete its generic quality and remedy defects that have become obvious. Its score of recommendations would command general though not uncritical support.
They include the removal of the veto that one side has in the designation process (with a heightened risk in multi-option referendums), core grants that have been halved by inflation, donation and spending reporting that is far too slow to be transparent and above all the role of government in referendums.
It is especially important to understand the danger of leaving the behaviour of government in referendum campaigns unreformed in the independence referendum. The problem is this.
All campaigners except the government will be regulated throughout the proposed four month campaign. The one exception—the government—need only comply with PPERA for the last 28 days of the campaign. For the other three months, the government is free to do what it wants.
This is seen to give a significant advantage to the government of the day and likely to be especially so in the smaller polity of Scotland. Despite the existence of standing codes on the use of public money, civil servants or public bodies, the government can easily plan its business and use the profile of office with its routine attendance of media to its campaign advantage.
In 2003, the No euro campaign sought legal opinion that this special treatment breached their rights under Articles 10 and 14 of the European Convention on Human Rights. Although the Lord Chancellor disputed the opinion, the campaign only desisted from pursuing the case when the Labour Government abandoned the euro referendum in June of that year. The challenge is therefore untested and could arise again.
The Labour Government remained sensitive on the point. Before the North East referendum in 2004, it offered to date the 28 date purdah (as it became known) from postal voting day rather than referendum day. Then in 2010, it responded to a Lords inquiry that it would consider the issue on a “case by case” basis.
The Neill Committee recommended that government should play no part in referendum campaigns except as individuals through their political Parties. Though he cited other countries where this is a longstanding practice without problems, his recommendation was not adopted. It is now accepted by those who have campaigned under the Act and repeatedly recommended by the Electoral Commission that this special treatment should cease.
The only way to remove it fairly from the independence referendum is to amend PPERA for all future UK referendums. This is strongly recommended.
Tailoring by the Scottish Government
Scottish Government Information leaflet
The Scottish Government proposes to publish a factual information leaflet about the process of a referendum in the same way that was done by the UK Government did in 1997.
In 1997, the 8 page colour leaflet dealt with the case for a devolved Parliament and only one page dealt with process. The leaflet was produced in English and six other languages and mailed to every household at public expense. It was also accompanied by Braille, audio and video editions. The whole exercise cost between £400,000 and £700,000 in 1997 and if adjusted for inflation, the equivalent expenditure would be around £1 million pounds in 2014.
There was no information about the case against a Scottish Parliament. Although it was deliberately anodyne treatment of the Yes case in order to avoid controversy, Lord Neill subsequently deprecated the public spending on one side of the referendum. It lead his committee to recommend that each side be given a grant to make its case widely known and government should stay out of the process. This recommendation was enacted in PPERA and the figure in the Act of £600,000 was the £125,000 grant of the 1975 referendum adjusted for inflation to 1999.
The Scottish Government is proposing to completely withdraw this public grant while publishing an information leaflet costing up to El m. In effect going back to the status quo ante the Neill report while claiming it is following PPERA as closely as possible.
This spending needs to be considered in later in the context of spending limits for designated campaigns. The combined spending of YES and the public leaflet was somewhere between a minimum of £700,000 and £1,150,000. With this range in mind the Scottish Government’s proposal of a spending limit of £750,000 for the designated lead campaigns is substantially too low for a much more demanding referendum than 1997.
By 2014 inflation will have almost halved the values in PPERA and SNP are proposing reduce them further. Other Registered campaigners will be allowed to spend only £50,000 not the £100,000 in PPERA. Thus the sole act of sending a single page mailshot to only 40% of the households in Scotland will exhaust their spending limit. This seems to be the sort of restriction on free speech that Lord Neill warned of in his report.
REFERENDUM SPENDING—ACTUAL AND ADJUSTED FOR INFLATION1
|
|
1975 |
1997 |
2000 |
2011 |
2014 |
|
EU UK stay in referendum—public grant |
£125,0004 |
|
£600,0002 |
£860,00 |
£946,000 |
|
HMG 8 Page Devolution leaflet -min 3 |
|
£400,000 |
|
£597,000 |
£657,000 |
|
HMG 8 Page Devolution leaflet -max 3 |
|
£700,000 |
|
£1,045,000 |
£1,150,000 |
|
Yes-Yes cross party actual spending |
|
£225,000 |
|
£336,000 |
£370,000 |
|
Combined HMG5 min + YES spend |
£625,000 |
£933,000 |
£1,027,000 |
||
|
Combined HMG max + YES spend |
|
£925,000 |
|
£1,381,00 |
£1,520,000 |
|
Think Twice (NO) Spend |
|
£250,000 |
|
£373,000 |
£410,000 |
|
Other YES (Political Parties) |
|
£375,000 |
|
£560,000 |
£616,000 |
Max spending for a non-designated registered campaign is £100,000 in PPERA—to be reduced to £50,000 by SNP.
April 2012