Lessons Learned from the EU Referendum Contents

3The regulatory framework for referendums

The Political Parties, Elections and Referendums Act 2000

27.The Political Parties, Elections and Referendums Act 2000 (PPERA) applies to referendums held throughout the United Kingdom, including in one or more of the constituent parts of the UK and any specified region in England, “in pursuance of any provision made by or under an Act of Parliament”.34 PPERA provides for the following:

28.Of particular importance is section 125 of PPERA, which provides for a 28 day controlled period prior to a referendum polling day, during which Government Ministers, Departments, Local Authorities and other public bodies are prohibited from publishing material relating to the referendum question.36

29.Prior to the EU Referendum there had only been two referendums of note held under the PPERA regime, the 2004 referendum on an elected assembly for the North-East of England, and the UK-wide referendum on the electoral system in 2011. Because the 2014 Scottish independence referendum was the product of an Act passed by the Scottish Parliament the referendum did not formally fall under the provisions of PPERA. However, the Edinburgh Agreement 2012, signed by the UK and Scottish Governments, stated that the principles governing the referendum would be based on PPERA.37 As a result, the Scottish Independence Referendum Act 2013 (SIRA) complied with the broad framework laid out by PPERA.38

30.While PPERA creates a regulatory framework for referendums, bespoke legislation, providing detailed rules, are required for each referendum. William Norton, the Legal Director of Vote Leave, explained to the Committee that PPERA provides “a certain basic minimum regulatory framework that governs any referendum that is held under the Act, but it leaves space for particular bespoke regulations governing, for example, the question itself, the date and various other ancillary matters”.39 In the case of the EU Referendum, this additional regulatory structure not only included the European Union Referendum Act 2015 (the Referendum Act), but also the European Union Referendum (Conduct) Regulations 2016, the European Union Referendum (Date of Referendum) Regulations 2016 and the European Union Referendum (Voter Registration) Regulations 2016.40

31.The Referendum Act provided for a referendum on the UK’s membership of the EU to be held by 31 December 2017 (but not on either 5 May 2016, or 4 May 2017), while the regulations provided for the dates of the application period for campaigns seeking official designation (applications opened on 4 March 2016 and the designation announcement was made on 13 April), the referendum period (15 April-23 June) and of the referendum itself (23 June), as well as the deadline for electoral registration (following the crash of the Government’s voter registration website, a set of emergency regulations, the European Union Referendum (Voter Registration) Regulations 2016, were tabled to extend the original registration deadline).

Section 125 of PPERA

32.Section 125 of PPERA provides for the following prohibition on the publication of referendum-related promotional material by central and local government and other public bodies, during the final 28 days of the referendum campaign:

Box 1: Political Parties, Elections and Referendums Act 2000, section 125

125 Restriction on publication etc. of promotional material by central and local government.

1)This section applies to any material which—

a)provides general information about a referendum to which this Part applies;

b)deals with any of the issues raised by any question on which such a referendum is being held;

c)puts any arguments for or against any particular answer to any such question; or

d)is designed to encourage voting at such a referendum.

2)Subject to subsection (3), no material to which this section applies shall be published during the relevant period by or on behalf of—

a)any Minister of the Crown, government department or local authority; or

b)any other person or body whose expenses are defrayed wholly or mainly out of public funds or by any local authority.

3)Subsection (2) does not apply to—

a)material made available to persons in response to specific requests for information or to persons specifically seeking access to it;

b)anything done by or on behalf of the Commission or a person or body designated under section 108 (designation of organisations to whom assistance is available);

c)the publication of information relating to the holding of the poll; or

d)the issue of press notices;

and subsection (2)(b) shall not be taken as applying to the British Broadcasting Corporation or Sianel Pedwar Cymru (S4C).

4)In this section—

a)“publish” means make available to the public at large, or any section of the public, in whatever form and by whatever means (and “publication” shall be construed accordingly);

b)“the relevant period”, in relation to a referendum, means the period of 28 days ending with the date of the poll.

Source: Political Parties, Elections and Referendums Act 2000, section 125

33.As originally presented to the House of Commons in June 2015, Schedule 1 of the Referendum Act 2015 would have disapplied the section 125 provisions for the purposes of the EU referendum.41 The Government’s explanation for this proposed dis-application, offered by the then Europe Minister, the Rt Hon David Lidington MP, was that section 125 resulted in a “very wide-ranging ban on what the Government can do”.42

34.As such, the Minister continued, section 125 would “prevent the Government or any public body from making any comment not necessarily on the referendum question but on an issue that might be discussed in the Council of Ministers meeting or in response to a European Court of Justice judgment” and “could make it impossible to explain to the public what the outcome of the renegotiation was and what the Government’s view of that result was”.43

35.Similar warnings about the potentially detrimental effect of section 125 on the Government’s ability to conduct business as usual were made by Sir Jeremy Heywood when he appeared before PACAC in July 2015, as part of our inquiry,

EU Referendum Bill part 1: Purdah and impartiality.44 This inquiry was launched on 8 July 2015, in response to a commitment made by the Minister to “consult parliamentary colleagues in all parts of the House to understand their concerns and views [on section 125] more closely”.45

36.According to Sir Jeremy Heywood, the Civil Service’s main concern was in relation to normal government business in Brussels, where Ministers would be “sitting in those [Ministerial] Councils trying to secure the best outcome for Britain”.46 Sir Jeremy Heywood warned that the Government’s legal advice was “very worrying [ … ] that unless Ministers tread very carefully, they may well end up using arguments in those internal EU discussions that could be construed by anyone litigious as bearing on the question of the referendum”.47 Elaborating on this point, Sir Jeremy Heywood explained that “often during Council discussions”, the UK would register its position “by way of a minute statement, or you publish a document that is not technically a press notice, but is a statement of the UK’s position in writing”. He expressed concerns that such a document might be considered to constitute an infringement of section 125.48

37.On 22 July 2015, PACAC wrote to the then Minister for Europe, Rt Hon David Lidington MP, detailing the Committee’s objections to the disapplication of section 125.49 PACAC called for section 125 to be reinstated for the EU referendum, though it acknowledged that there could be scope for section 125 to be amended to provide clarification to reduce the perceived risk of legal challenge. In addition, it argued that regardless of any additional exemptions the machinery of government should not be used for campaigning purposes during a referendum.50 Following this letter and after a series amendments to the Referendum Act at Report stage, including defeats for the Government, the provisions of section 125 in full were effectively applied to the EU referendum.51 This was a significant instance of how a Select Committee can directly influence the progress of government legislation.

38.When Sir Jeremy Heywood returned to give evidence to PACAC, as part of this inquiry, he defended his previous comments on purdah, saying that it was “absolutely right that the Cabinet Secretary takes seriously legal advice that I am given and the Government is given”.52 According to Sir Jeremy Heywood, the concerns the Government had about purdah were twofold:

First, the Prime Minister had a very clear concern that the Government should be able to set out their perspective all the way through the referendum campaign. That was the political concern that he expressed repeatedly, and I mentioned it in the Committee as well. Secondly, we had this legal advice that we would have to be very careful to avoid business-as-usual business in Brussels falling foul of the wording of section 125.53

39.Nonetheless, he conceded that the problems that the Government’s lawyers warned about did not arise during the purdah period. Not only did Sir Jeremy Heywood acknowledge that he was “not aware of any” litigation threats made against the Government during the 28 day purdah period, but he also stated that the application did not cause “huge difficulties for business as usual”. 54

40.The Electoral Commission had also stressed the importance of reinstating the purdah provisions into the Referendum Act, in line with PACAC’s recommendations. According to Jenny Watson, Chair of the Electoral Commission, the Commission felt that the application of section 125 was “extremely important” in providing fairness in the referendum. In Ms Watson’s opinion, section 125 is “there for a reason”, to give people confidence and it was “entirely right that it should have been reintroduced into the Bill”.55 Matthew Elliott from Vote Leave noted that “it was not until purdah kicked in that we felt that both sides were given a fair hearing” during the actual campaign.56

41.The reinstatement of the restrictions on government set out in section 125 of the Political Parties and Referendums Act (PPERA) was of critical importance to the fair conduct of the referendum and the legitimacy of its outcome. Parliament was right to resist the then Prime Minister’s desire that the government qua government should be able to promote its views on the referendum issue right the way through the referendum campaign. This would have constituted the use of public resources for political campaigning and would have made a nonsense of one of the purposes of PPERA, which is to create parity between the two campaigns. Fears that the application of section 125 could have potentially problematic consequences for the conduct of government proved groundless. Sir Jeremy Heywood conceded that the application of section 125 did not cause huge difficulties for business as usual. Regardless of the legal advice, or the concerns of ministers, the attempt to disapply section 125 of PPERA left the Government open to the impression that it was seeking to manipulate the referendum process.

42.The provisions of section 125, while imperfect, have been successfully applied in numerous referendums since 2000. There is no evidence that section 125 created any of the threats to good governance that the Cabinet Secretary feared during his appearance before PACAC in July 2015. The purdah provisions of section 125 of PPERA play a key role in the fair conduct of referendums and must continue to do so in future referendums.

Reforming the regulatory framework for referendums

43.PPERA has been in operation for over 16 years and while our evidence suggested that, in certain respects, the legislation has stood the test of time well, there was general agreement that there was scope for improvement.57 In particular, witnesses pointed to two main areas where reform is needed: first, in terms of consolidating the regulatory framework for referendums; and second, in modernising and clarifying the provisions of section 125. According to the Electoral Commission, the time has “probably come [ … ] to update the rules in the legislation”, with “some real opportunities to improve section 125”.58

Consolidating referendum law

44.As discussed in paras. 34–35, while PPERA provides the basic regulatory framework for referendums, each referendum requires bespoke, primary and secondary legislation, that not only provides for the referendum to be held, date of poll and franchise, but also the conduct rules.

45.The requirement for new primary legislation for every referendum was described by the three UK Law Commissions in December 2014, when launching a joint consultation on consolidating electoral and referendum law, as “complex, voluminous and fragmented”.59 The twin aims of the Law Commissions’ project were to ensure “that electoral laws are presented within a rational, modern legislative framework, governing all elections and referendums within scope” and “that electoral laws are modern, simple, and fit for purpose”.60

46.In their joint interim report, published in February 2016, the Law Commissions recommended that “the current laws governing elections should be rationalised into a single, consistent legislative framework governing all elections (enacted in accordance with the UK legislatures’ legislative competences)”.61 It is intended that this single legislative framework would be extended to referendums. According to the Commission:

At present, referendum law is on the whole contained in the instigating Act, even if it concerns the most basic elements of administering the poll. Whenever a referendum is to be called, the legislation instigating it must “reinvent the wheel”–making provision that, in essence, duplicates established electoral law, with some modification to accommodate the referendum taking place. This presents administrators with a large volume of new rules, and government and Parliament with unnecessarily extensive bills to prepare and scrutinise.62

47.In the Law Commissions’ opinion, it therefore seemed “desirable to produce a set of generic referendum conduct rules that could simply be applied with minimal adaptation in the instigating Act to the referendum it calls”. Such a development would, they suggested, “reduce the current complexity of the law, speed up the legislative process and make the conduct rules accessible in advance by electoral administrators”.63

48.As a result, the Law Commissions’ made the following recommendations for the reform of referendum law in the UK:

Recommendation 12-1: Primary legislation governing electoral registers, entitlement to absent voting, core polling rules and electoral offences should be expressed to extend to national referendums where appropriate.

Recommendation 14-2: Secondary legislation should set out the detailed conduct rules governing national referendums, mirroring that governing elections, save for necessary modifications.64

The Law Commissions’ recommendations have been supported by the Electoral Commission, both during the Law Commissions’ consultation process and, most recently, the form of the Electoral Commission’s official report into the EU referendum.65

49.The report makes a number of recommendations for future referendum legislation and conduct, not least on the merits of standardising and simplifying the regulatory framework for referendums. Indeed, the first of the Electoral Commission’s recommendations was that “the UK Government should establish a clear standard framework for the conduct and regulation of future referendums”.66

50.In response to the Law Commissions’ proposals, the Electoral Commission recommended that, rather than wait for another referendum to act, the Government use the powers provided to the Secretary of State in section 129 of PPERA “to make an Order providing the detailed conduct rules for the administration of any future referendum poll”.67 Jenny Watson emphasized to us that the Electoral Commission “very strongly” supports the work of the Law Commissions.68

51.PACAC supports the Law Commissions’ proposals to consolidate the law relating to referendums. The basic regulatory framework provided by PPERA would be strengthened by the establishment of a generic conduct order that can be applied for future referendums. Such an order would end the current practice whereby each referendum results in a process of ‘reinventing the wheel’ with referendum-specific provisions required which, in the case of conduct, essentially duplicate the provisions that were made for previous referendums. Consolidation in the form of a new generic conduct order would streamline the process of calling a referendum. It would provide greater stability in the constitutional and legal framework for referendums, and would also provide greater clarity for parliamentarians, campaigners and the electorate.

Modernising section 125

52.The other principal aspect of regulatory reform, identified by witnesses to our inquiry, was the modernisation and clarification of section 125. Suggestions as to how section 125 could be reformed have generally focused around the length of the purdah period and whether the terms of the provision should be reviewed and clarified (including whether the provisions of section 125 adequately capture the increasingly online nature of campaigning and publishing).69

The last 28 days: a long enough period?

53.There has been a long-running debate as to whether the last 28 days of a referendum is a sufficiently long controlled period. In particular, the Electoral Commission has repeatedly argued that the existing 28-day period should be extended. For example, in its report on the 2004 North East referendum, the first to be held under the PPERA regime, the Commission concluded:

Although the legislation currently prevents the use of public money for publishing certain types of information in the 28 days before the close of poll, the Commission believes that the Government should not use public money after the referendum period begins. However, if it does, it should adhere to a self-imposed restriction period of at least 28 days prior to the distribution of postal ballots.70

Following the referendum on the voting system for UK parliamentary elections in May 2011, the Electoral Commission again recommended that “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”.71

54.Following the 2014 Scottish independence referendum, the Electoral Commission appeared to adopt a somewhat different view of whether section 125 should effectively last for the duration of the referendum period.72 In its report of the referendum, the Commission recommended that in future:

Relevant governments, not only in Scotland but also those in other parts of the UK, should publicly commit to and refrain from, in practise, any paid advertising, including the delivery of booklets to households, which promotes a particular referendum outcome for the full duration of the referendum period.73

55.Despite this, the Commission has argued “in principle that a period of 28-days is an adequate duration for the restrictions on the publication of other promotional material by central and local government”. To prevent any risks that might arise from this “relatively short period”, the Commission said it was “important that relevant governments give careful consideration to the impact on the campaign and voters’ trust in the rules of any referendum related information they publish before the restrictions come into force”. It added that it was “also important that there is a clear explanation of the rules and how to comply with them for relevant public bodies to follow during that period”.74

56.In evidence to PACAC, Dr Alan Renwick (University College London) and Dr Simon Usherwood (the University of Surrey) both spoke about the short nature of the purdah period during the referendum campaign. As Dr Renwick noted, while purdah applied for four weeks, “the intensive campaign clearly lasted for more than four weeks and, therefore, the Government was able to be involved in April and May”.75 This state of affairs was, according to Dr Renwick, “not satisfactory”.76 Drawing attention to the fact that the official campaign period was 10 weeks, he suggested that “something like that might be appropriate”.77 Dr Usherwood also noted that “the purdah period felt rather short in the context of the long campaign that effectively started at the general election last May”.78

57.William Norton, from Vote Leave, suggested that the period of 28 days was a rather arbitrary figure, with little explanation for this figure provided when PPERA was taken through Parliament.79 He also contrasted the section 125 arrangements of a 28 day controlled period with the 39 day purdah period that applied during the run-up to the 2015 General Election:

… if the Government can carry on quite amicably with a purdah period of 39 days for a general election, why is 28 a sort of horrific period of time for a much smaller matter like a referendum? I think I would have the position of a referendum exactly the same as for a general election. It seems to work every five years. I do not see why we cannot have that situation.80

58.Though Will Straw, the Executive Director of Britain Stronger in Europe, felt that the 28 day period was sufficient, he noted that he would not object to a longer purdah period as his campaign had worked “on the rules that were set”.81

59.The Electoral Commission, during their oral evidence to PACAC, reiterated their suggestion, made while the Referendum Act was going through Parliament, that the Government “should be restricted for the whole referendum period”, including an extended restriction on the ability of governments to produce advertising material during referendums (a restriction that would, in Jenny Watson’s opinion, have caught the Government’s booklet).82 With regards to restrictions for future referendums, the Commission indicated that its preference was for section 125 to be extended to 10 weeks (the length of the campaign period).83

60.Section 125 of PPERA provides important protection for the fairness of referendum campaigns, but the 28 days specified is too short a period in the context of the much longer official campaign period. The absence of a longer purdah period enables the Government and other relevant public bodies to produce promotional material during most of the referendum campaign period, a situation that is far from satisfactory.

61.The Electoral Commission has long argued that the restrictions on the publication of promotional, referendum-related, material by the Government should be extended, beyond the current 28 day period, provided by section 125, to cover the full referendum period. Nothing but the Government’s political intentions are served by maintaining the 28 day purdah period. PACAC recommends that the Government should bring forward proposals to extend the section 125 restrictions so that they are in force for the full duration of a referendum period of ten weeks, as recommended by the Electoral Commission and so many other respected authorities.

Analogue in a digital age? Section 125 and the definition of publishing.

62.Section 125 of PPERA was drafted before the digital age. The issue arose during the referendum of what constitutes to ‘publish’ in an increasingly digital democracy. Should materials published online by the Government before the purdah period remain online during the final 28 days of the campaign when section 125 is in force?

63.During the campaign, the Government established a website www.eureferendum.gov.uk, which hosted a range of material related to the referendum, including a range of government produced reports and material making the case for a remain vote. The intention was that this website would continue to be publicly accessible during the 28 day purdah period, albeit with no new material uploaded to the website.

64.This prompted a significant difference of opinion, and legal advice, among PACAC, the Government and the Electoral Commission as to what constitutes publishing for the purposes of an online publication. To summarise, PACAC’s position, based on advice provided by the then Speaker’s Counsel, Michael Carpenter, supported by reference to relevant case law, was essentially that publishing in an online context was an iterative process, occurring each time material was accessed online. He explained to ‘publish’ is defined (in section 125(4)(a)) as to ‘make available to the public at large, or any section of the public, in whatever form and by whatever means’. He continued:

I understand that the Cabinet Office is taking the view that section 125 permits material to remain accessible on the website, provided that no new material is added during the purdah period. The Written Answer suggests that it will be in order to continue to make ‘factual information’ available.

In my view, this is based on an incorrect reading of the term ‘publish’ in section 125 and of the restriction in section 125(2). To keep material on the website so that it remains accessible during the purdah period amounts to a breach of the duty under section 125(2) and is unlawful. ‘Factual information’ is not an exempted category under section 125(3).84

As a result, the Government’s website would represent a breach of section 125.85 The full texts of Mr Carpenter’s advice are attached as Annexes 1 to 3 to this report.

65.The Cabinet Secretary and the Government disputed this interpretation. Sir Jeremy Heywood rejected the notion that section 125 imposed a legal requirement “to cleanse the web of already published material”.86 Instead, he asserted that the purpose of the legislation was instead aimed at “preventing new material from being put into the public domain by the Government during the 28-day period”.87 However, Sir Jeremy Heywood indicated that the Government would, during the controlled period, “remove all links to the website from government channels such as GOV.UK” and that while individuals will be able to search for already published information “they will actively have to do this”.88

66.The Electoral Commission announced that they took the view that “allowing continued access to a website that was published before the 28 day period, whether or not any new content is subsequently added, is likely to be amounting to “publish” under section 125 of PPERA, given the wide definition of “publish” in section 125(4)(a)”.89 However, they also argued that the exception under section 125(3)(a), concerning “material made available to persons in response to specific requests for information or to persons specifically seeking access to it “[ … ]would cover content that was originally published prior to the 28 day period, which remained available to anyone specifically seeking access to that content within the 28 days”.90

67.The Commission judged that as long as “the website is designed in such a way that members of the public need to take active steps to seek access to the content, in our view the exception under section 125(3)(a) would apply”. In the event, the Government took measures to comply with the Electoral Commission’s interpretation of section 125, which was that the material remained online, but not promoted by advertising links on other government websites. We doubt that the Government would have acted in this way without PACAC’s intervention. Sir Jeremy Heywood outlined these measures in his letter to the Chair of this Committee on 6 May 2016.91 The Commission concluded that it appeared unlikely that there would be a breach of section 125(2).92 Nevertheless, as the Electoral Commission acknowledged, these discussions on section 125 had raised “some complex legal issues and matters of principle, concerning whether the legislation is drafted in the best way to achieve the underlying purpose behind the provision”.93

68.Section 125 was originally drafted some 16 years ago. Since that time campaigning and publishing have both become increasingly digital in nature. As a result, terminology and provisions that may have been appropriate in 2000, may be less effective at regulating campaign activity in 2017. PACAC, the Electoral Commission and the Government all had different legal advice and interpretations as to: a) whether the eureferendum.gov.uk website represented publishing for the purposes of section 125; and b) whether the steps taken to remove links to the website satisfied the exception provided in section 125(3)(a). This underlines the need for section 125 to be reviewed and amended so as to better reflect the increasingly digital nature of our democracy.

69.PACAC recommends that the Government bring forward consultative proposals for the redrafting of section 125. These proposals should provide greater clarity as to the status of online publications, for the purpose of the section 125 restrictions, and what constitutes “specifically seeking access” to materials, under the terms of the exception laid out in section 125(3)(a), in respect of online material available from government websites.

Time for a wider review of section 125?

70.In their official report into the EU referendum, The 2016 EU Referendum: Report on the 23 June 2016 referendum on the UK’s membership of the European Union, the Electoral Commission recommended that the UK Government should consult “on options for redrafting section 125 PPERA to clarify the nature, scope and enforcement of the restrictions”. According to the Commission, section 125 should be “significantly redrafted” so as to clarify the nature and scope of the restrictions, with greater clarity provided on the activities that are restricted, whether specific exemptions are required, when the restrictions should apply and over the enforcement of the restrictions.94

71.Bob Posner, the Electoral Commission’s Legal Counsel and Director of Party and Election Finance, said that the key points the Commission wanted any review to cover, in addition to clarity and scope, were sanctions for the enforcement of section 125 and investigatory powers for the Commission.95 As Mr Posner explained, at present there are no sanctions available for the enforcement of section 125. As a result, the investigatory powers that the Electoral Commission enjoys in relation to their other functions do not apply in relation to policing section 125.96

72.In addition, the Commission would, according to Jenny Watson, want, as part of this review, to “more closely define the type of activity that a public body should not be undertaking during the referendum period”.97 Such activity would include, for example, advertising, billboards, leaflets, essentially the “kind of activity that is clearly intended to be campaign activity”.98

73.Indeed, during the course of the campaign, the specific question of legitimate activities for public bodies arose in relation to the Bank of England, and in particular, public comment made by the Governor of the Bank of England, Mark Carney. Bernard Jenkin MP, Chair of PACAC raised concerns directly with the Governor that the Bank was, and should be subject to the restrictions of section 125 during the purdah period. The Governor replied:

The Bank is not “a person or body whose expenses are defrayed wholly or mainly out of public funds” and, as such, is not subject to the restrictions in section 125. Nonetheless, the Bank has voluntarily determined to observe pre-Referendum purdah in the spirit of the guidelines issued by the Cabinet Office on 26 May 2016. Of course, the Bank must continue to pursue its statutory objectives throughout the purdah period and will therefore continue to publish ‘business as usual’ communications pursuant to its statutory remit.99

Mr Carney’s assertion that the Bank of England is not a public body falling under the section 125 definition is contradicted by the advice given to us by the then Speakers’ Counsel.100 We do, however, note that the Bank felt obliged to submit to the substance of the section 125 restrictions. At a subsequent meeting with the Chair of PACAC, following the referendum, Mr Carney was invited to submit written evidence to clarify his position further. At the time of writing, this had not been received.

74.Section 125 has been in force for over 16 years and has operated, either directly or through similar provisions (e.g. via the Scottish Independence Referendum Act 2014), for a number of high-profile referendums. In light of this experience and the issues, detailed earlier in this report, that arose regarding section 125 during the EU referendum, there is now an opportune moment to explore the effectiveness of section 125.

75.PACAC recommends that the Government undertake a wider review into section 125. Such a review should take into account PACAC’s recommendations that the length of the controlled period be extended, and for the provision to be redrafted so as to provide greater clarity on the question of what constitutes publishing. PACAC agrees with the Electoral Commission that this review should also aim to provide a tighter definition of the kinds of activities that should be restricted during the controlled, and referendum, periods. It should also explore the sanctions that should apply for the purposes of upholding section 125 and the investigatory powers that the Electoral Commission should enjoy to police the application of section 125.

Other proposals for legislative and regulatory reform

76.Witnesses also proposed reform to the ‘working together rules’ which apply to campaign spending during a referendum. As Britain Stronger in Europe (BSE) explained, working together rules apply to ensure that that neither side coordinate expenditure between different organisations in a way that circumvents expenditure limits”.101

77.While BSE stated that the intention of these regulations “is perfectly sensible”, they argued that the definition of ‘working together’ has not been tested in law and that the level of guidance given to campaigners was “too opaque to allow participants to be sure of their ground when they are on the same side of the argument, but parts of different campaigns”.102 According to BSE the regulations created an “unnecessary ‘freezing’ of activity by some smaller participants” who decided, in order to avoid any risk of breaching the rules, “not to undertake any activity at all that could be perceived to have involved any other participants”.103

78.Bob Posner conceded that the working together rules, while aimed at enabling campaigners to cooperate, did pose problems. For example, he identified a common issue, namely the question of “if there is campaign spending, whose campaign spending is it, and therefore whose limit does it count against”?104

79.Mr Posner continued that there was “not a lot of assistance in the legislation itself” as to what constitutes working together. While he claimed that “at one extreme” such working together can “be very obvious if two campaigners have a common strategy and approach”, in practice, he suggested that it tends to be “campaigners on the same side of the argument probably just talking fairly informally about things”.105 According to Mr Posner, somewhere in that spectrum “you cross a threshold where two campaigners are working together”.106

80.In light of these complexities, Mr Posner conceded that there was no hard and fast answer as to what constitutes working together and suggested that this would be an area for future exploration by the Commission, after it has settled the campaign spending returns.107

81.PACAC is concerned that campaigns are struggling to operate within the existing system of working together rules. These rules should provide clarity for campaigners, so that they can cooperate with one another in a way that is clearly consistent with the letter and spirit of the campaign spending rules. Instead, we heard evidence that the current lack of certainty regarding the working together rules has resulted in an “unnecessary freezing” of activity among campaign participants who wish to avoid any risk of breaching the rules. PACAC, therefore, welcomes the suggestion, from the Electoral Commission, that it will return to this issue after it has settled the full spending returns from the referendum campaigns.

34 Political Parties, Elections and Referendums Act 2000, s.section 101(1) and (2).

35 House of Lords Select Committee on the Constitution, Referendums in the United Kingdom, 12th Report of Session 2009–10, HL Paper 99, para.142.

36 Political Parties, Elections and Referendums Act 2000 (PPERA), section 125; PPERA also provides for the creation of an Electoral Commission, a body independent of government and established in 2001(Political Parties, Elections and Referendums Act 2000, Part 1). The Electoral Commission and its role during referendums will be discussed in more detail in Chapter Four of this report. For the purposes of this chapter it is sufficient to note that PPERA provides for the Commission to comment on the intelligibility of the referendum question, appoint designated campaign organisations, monitor and report on campaign spending; and report on the administration of the referendum.

38 Scottish Independence Referendum Act 2013; for example, section.4 of SIRA incorporated, for Scottish public bodies at least, the provisions laid out in section 125 of PPERA, s.4.

39 Q199.

41 European Union Referendum Act 2015, Sch.1.

42 This explanation was offered by Mr Lidington during the first day of the Committee of the Whole House for the EU Referendum Bill on 16 June 2015 (HC Deb, 16 June 2015, c.232).

43 HC Deb 16 June, c.233.

44 As the House of Commons Library explains, “the term ‘purdah’ is in use across central and local government to describe the period of time immediately before elections or referendums when specific restrictions on the activity of civil servants are in place. The terms ‘pre-election period’ and ‘period of sensitivity’ are also used” (White, I. ‘Purdah’ before elections and referendums, House of Commons Library Briefing Paper, Number 05262, 26 May 2016, p.3). Use of the term ‘purdah’ has attracted some controversy as it is derived from the Urdu and Persian word parda meaning “veil or curtain”, often referring to the practice in certain Muslim and Hindu societies of screening women from men or strangers, particularly by means of a curtain. However, in elections and referendums it is common parlance to use the term to refer to the pre-election period and we use the term as shorthand, in this report, for the 28 day pre-referendum period.

45 HC Deb 16 June 2015, c.235; House of Commons Public Administration and Constitutional Affairs Committee, EU Referendum Bill part one: Purdah and Impartiality, 8 July 2015.

46 Oral evidence taken before the Public Administration and Constitutional Affairs Committee: EU Referendum Bill: Part One: Purdah and Impartiality, Tuesday 21 July 2015, HC 319 Q230.

47 Oral evidence taken before the Public Administration and Constitutional Affairs Committee: EU Referendum Bill: Part One: Purdah and Impartiality, Tuesday 21 July 2015, HC 319 Q230.

48 Oral evidence taken before the Public Administration and Constitutional Affairs Committee: EU Referendum Bill: Part One: Purdah and Impartiality, Tuesday 21 July 2015, HC 319 Q232.

51 s.8 of the European Union Referendum Act provided for a power to modify section 125 through regulations, though such regulations had to be agreed at least four months before the date of the referendum.

52 Q1.

53 Q5.

55 Q307.

56 Q207.

57 Dr Alan Renwick (EUR0080); Professor Stephen Tierney (EUR0072); The UK in a Changing Europe (EUR0064).

59 Law Commission, Scottish Law Commission and Northern Ireland Law Commission, Electoral Law, Joint Consultation Paper LCCP 218 / SLCDP 158 / NILC 20 (2014), p.4.

60 Law Commission, Scottish Law Commission and Northern Ireland Law Commission, Electoral Law, Joint Consultation Paper LCCP 218 / SLCDP 158 / NILC 20 (2014), p.4.

61 Law Commission, Scottish Law Commission, Northern Ireland Law Commission, Electoral Law: a joint interim report (2016), p.8.

62 Law Commission, Scottish Law Commission, Northern Ireland Law Commission, Electoral Law: a joint interim report (2016), p.195.

63 Law Commission, Scottish Law Commission, Northern Ireland Law Commission, Electoral Law: a joint interim report (2016), p.195.

64 Law Commission, Scottish Law Commission, Northern Ireland Law Commission, Electoral Law: a joint interim report (2016), p.196.

65 Law Commission, Scottish Law Commission, Northern Ireland Law Commission, Electoral Law: a joint interim report (2016); The Electoral Commission, The 2016 EU Referendum: Report on the 23 June 2016 referendum on the UK’s membership of the European Union, September 2016.

68 Q299.

69 Dr Alan Renwick (EUR0080); Qq317–318.

70 The Electoral Commission, The 2004 North East regional assembly and local government referendums, November 2005, p.7.

71 With the exception of the activities carried out by Counting Officers, under any statutory duty to promote participation and in accordance with the CCOs directions (The Electoral Commission, Referendum on the voting system for UK parliamentary elections: Report on the May 2011 referendum, October 2011, p.11).

75 Q120.

76 Q121.

77 Q122.

78 Q121.

79 Q207.

80 Q207.

81 Q170.

92 Letter from Jenny Watson to Bernard Jenkin MP, 11 May 2016; This prompted further discussion as to what constitutes ‘specifically seeking access’, with Speaker’s Counsel contending that the steps outlined by the Cabinet Secretary did not satisfy the ‘active steps’ needed to trigger the exceptions in section 125(3)(a) (Note from the Speaker’s Counsel to PACAC, Publication of material on website and section 125 Political Parties, Elections and Referendums Act 2000: third note, 17 May 2016).

95 Q316.

96 Q316.

97 Q318.

98 Q319.

99 Letter from Mark Carney, Annex 6.

100 Annex 6.

101 Britain Stronger in Europe (EUR0091).

102 Britain Stronger in Europe (EUR0091).

103 Britain Stronger in Europe (EUR0091).

107 Qq268–269; the deadline for spending returns over £250,000 was 23 December 2016.

11 April 2017