Select Committee on Delegated Powers and Deregulation Eleventh Report



The referendums to which Part VII applies are listed in section 97(1). Under subsection (4) the Secretary of State may by order provide that this Part or any specified provisions of this Part (subject to any specified modifications) shall apply to a specified referendum for which provision is made by a Bill specified in the order. The order will also specify the referendum period (see clause 98). This matter has been left to delegated legislation because it may not apply to all Bills introduced to Parliament providing for a referendum to be held (although the presumption is that an order will be made in respect of Government Bills), it will be a matter to be decided at the time that the Bill is introduced. The order is subject to the affirmative resolution procedure because the effect will be to apply Part VII, or a specified part (with or without modifications), to that referendum.


The Commission may designate permitted participants to whom financial assistance is available under clause 105. Where there are only two possible outcomes to a referendum the Commission may designate a permitted participant for each outcome or make no designation. Where there are more than two possible outcomes the Secretary of State may, after consulting the Commission, by order specify the possible outcomes in relation to which permitted participant may be designated. The Commission may then designate a permitted participant in respect of each outcome or make no designation. This matter has been left to delegated legislation since the possible outcomes can only be determined once the referendum question has been determined, that will usually be in the Bill establishing the referendum. The order is subject to the affirmative resolution procedure as it is important that full scrutiny is given to the decision as to how many permitted participants are to be designated as they will then be eligible for financial assistance.


Clause 104 sets out the requirements for an application for designation by a permitted participant. Subsection (2) provides the application must be made within 28 days beginning with the first day of the referendum period (defined in clause 96) and subsection (3) provides the Commission must determine the application within 14 days of the end of that 28 day period. Subsection (6) enables the Secretary of State, in relation to any referendum to which Part VII applies, by order to provide for a shorter or longer period to apply to be 28 days and 14 days in subsections (2) and (3). This matter is left to delegated legislation because it will depend upon the particular circumstances of the referendum whether it is appropriate to make an order, for example, if the referendum is to take place very quickly. The referendum will normally be at least 28 days after the 14 days (see clause 98). The order is subject to the negative resolution procedure. It is thought desirable that the order made pursuant to this provision should be subject to some parliamentary scrutiny but that the negative resolution procedure is sufficient.


Paragraph 2 of Schedule 13 imposes limits on referendum expenses by permitted participants in referendums held throughout the United Kingdom. Paragraph 3 allows the Secretary of State by order to prescribe the limits on referendum expenses by permitted participants in referendums which are not held throughout the United Kingdom, for example a referendum held only in Wales or in a region of England. The order may prescribe different limits for different referendums or different categories of permitted participant (see paragraph 2(2)(b) for an example). Before making an order the Secretary of State must seek and have regard to the views of the Commission and, if he departs from the views of the Committee, he must on laying the draft order also lay before each House a statement of his reasons for departing with the views of the Commission. The matter has been left to delegated legislation since the provisions will depend on the nature and extent of the particular referendum under consideration to which Part VII would apply and it would not be possible to identify all possible categories of permitted participants in advance of details of the referendum. The order is subject to the affirmative resolution procedure, as it will impose limits on referendum expenses by permitted participants corresponding to those in paragraph 2 of Schedule 13.


Clause 115 requires a permitted participant to make a return to the Commission in respect of referendum expenses incurred by or on behalf of the permitted participant during the referendum period. Under subsection (4) the Commission may by regulations prescribe a form of return which may be used for the purposes of this section. There is no sanction for failure to use the prescribed form. This matter is left to regulation by the Commission because it applies only to permitted participants and the need for a prescribed form and the nature of that form are matters which the Commission will determine over time.


Under clause 124 the Secretary of State may by order make provision in connection with regulating the conduct of referendums to which Part VII applies. The order may, in particular, make provision for the creation of offences and apply (with or without modifications) any provision of any enactment (notably the Representation of the Peoples Acts and Regulations). Different provision may be made in relation to different parts of the United Kingdom. No order may be made under this provision where another enactment, for example an Act establishing the referendum, makes provision, in connection with regulating any matters relating to the conduct of the referendum, except to such extent as may be provided by that enactment. The Secretary of State must consult the Commission before making an order under this provision. This matter has been left to delegated legislation since each order will be specific to a particular referendum. The order will be concerned with the administration of the referendum, for example the issue of polling cards and the hours of polling. Precedents for such arrangements being left to subordinate legislation are the Northern Ireland (Border Poll) Act 1972 and more recently the Greater London Authority (Referendum) Act 1998. In accordance with precedent, the order, which can create criminal offences, is subject to the affirmative resolution procedure.

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