Referendums in the United Kingdom - Constitution Committee Contents

CHAPTER 5: The referendum campaign: practical issues

141.  In spite of the evidence we received concerning the difficulties pertaining to the use of referendums (see Chapter 2), we have seen that referendums may become a part of the UK's political and constitutional landscape. Therefore practical issues relating to the holding of a referendum are still relevant and we consider these in this chapter.

142.  The Political Parties, Elections and Referendums Act 2000 (PPERA) sets out the legal framework for the conduct of referendums in the UK, in one or more of the UK's constituent nations, or in any region in England, where that referendum is held in pursuance of an Act of Parliament. The Electoral Commission is responsible for the conduct of referendums which are held under the auspices of the PPERA. Box 2 sets out the main provisions of the PPERA and the main responsibilities of the Commission.


Main provisions of the PPERA and the main responsibilities of the Electoral Commission
The Political Parties, Elections and Referendums Act 2000 (PPERA) prescribes inter alia:

·  the means by which a referendum period is determined;

·  the means by which referendum question(s) are determined;

·  requirements on individuals and groups who campaign in referendums—known as permitted participants—including controls on the amount that they spend and on the donations that they are permitted to accept; and

·  the means by which lead campaign groups—known as designated organisations—are determined and the assistance which they are entitled to receive.

The Electoral Commission's responsibilities include:

·  commenting on the intelligibility of the referendum question;

·  registering those who want to spend significant amounts on campaigning in the referendum as 'permitted participants';

·  where appropriate, appointing lead campaign groups ('designated organisations') for each outcome;

·  ensuring that designated organisations have access to certain assistance,

·  including grants that the Commission determine within statutory limits;

·  making recommendations to Government on campaign spending limits for sub-UK referendums;

·  monitoring and reporting on campaign spending; and

·  reporting on the administration of the referendum.

Timing of a referendum

143.  The choice of when a referendum is to be held can affect the cost of holding it, voter turnout and the impact of the result. Holding referendums at the same time as elections can reduce costs (pp 22-23) and, some witnesses suggested, increase turnout. But, the balance of the evidence we received was against holding referendums on the same day as General Elections. Unlock Democracy feared that holding the two on the same day might lead to the referendum being drowned out by other issues (p 23) whilst Nigel Smith's greater worry was that this could lay the referendum open to the charge of rigging (p 148). He told us that the Electoral Commission had recommended against the holding of referendums at the same time as a General Election (p 148). The Electoral Commission's own evidence was more equivocal on this point: "what we would want to do in the case of the combination, whether with a UK parliamentary General Election or any other form of combination, is to look very clearly at the situation at that time and to set out what we saw to be the benefits and the risks of such a combination, and to be very clear about how one might mitigate any risks that could arise" (Q 195).

144.  It was suggested by some witnesses that referendums might be held on the same day as elections other than General Elections. Professor Gallagher and Peter Facey said that referendums and elections happened simultaneously in other countries with no apparent confusion on the part of the electorate (p 123 and pp 22-23). On the other hand, Professor Tierney told us that referendums should be free-standing events which were kept quite separate from regular representative democracy (p 51).

145.  We recommend that referendums should not be held on the same day as General Elections. For other elections we recommend there should be a presumption against holding referendums on the same day as elections but that this should be judged on a case-by-case basis by the Electoral Commission.

146.  With regard to the timing of referendums, the PPERA (Section 102(4)) specifies that votes must be held within six months of the enabling legislation being passed. However, because paving legislation must be passed by Parliament before a referendum on any particular subject can be held, the overall timetable for the conduct of any referendum is in government hands. Some witnesses were worried that in practice this gave the Government too much control (Q 112 and p 144).

147.  We recognise the concerns expressed that government has, in practice, substantial control over the timing of referendums and recommend that consideration should be given to the introduction of legislation about referendum management.

Wording of the question

148.  Under the PPERA the Electoral Commission must consider the Government's proposed wording of the referendum question(s) and publish a statement of its views as to the intelligibility of that question or questions. The Secretary of State is not obliged to take this advice into account.

149.  We received evidence questioning this arrangement. Professor Graham Smith told us that:

    "The Electoral Commission is consulted, but it is not clear what happens if the Commission thinks it is a very poor question. It could send it back to the Secretary of State and the Secretary of State could say, 'The Electoral Commission thinks it is a very poor question, let's carry on with my very poor question'. He could still do that. There needs to be something in there about ensuring that the question is fair and that needs to be done independently" (Q 37).

150.  Professor Bogdanor recommended that the question should be formulated by a neutral body such as the Electoral Commission (Q 85). Baroness Kennedy reminded us that the Power Commission, which she chaired, had recommended that an outside body should have control over the question (Q 64).

151.  We asked the Electoral Commission whether its powers should be extended in relation to the wording of the referendum question:

    "I think our view would be that it would be extremely unlikely for a Secretary of State to be in receipt of our advice with the documentation and the testing and everything that we have done being published transparently and decide not to listen to our advice, because inevitably what that does is to set up a debate between the Electoral Commission and the Secretary of State where we are effectively saying, 'Your question is not the question which should be put,' and in that situation I think it would be extremely difficult for the Secretary of State to proceed" (Q 188).

152.  Michael Wills MP agreed that it would be difficult for a Secretary of State to ignore the views of the Electoral Commission on the wording of a referendum question: "I think it would be politically extremely unwise. I cannot imagine any sensible politician doing that—it would defeat the whole purpose of having a referendum in the first place, which is to legitimise the decision. To have a controversy, a row with the Electoral Commission would be foolish" (Q 248).

153.  Mr Wills was broadly happy with the current arrangements relating to the framing of the referendum question:

    "It is right that the ultimate authority should lie with Parliament, with the Government of the day framing the question in secondary legislation, but, of course, it is crucial that the Electoral Commission has the role that it does in deciding on the intelligibility of the question, which is fundamental to it being perceived as a fair process" (Q 246).

154.  Notwithstanding the Electoral Commission's assessment that it was extremely unlikely that a Secretary of State would ignore its advice on the wording of the referendum question we recommend that, rather than the Government making the final decision, the Electoral Commission should be given a statutory responsibility to formulate referendum questions which should then be presented to Parliament for approval.

155.  The Electoral Commission stated that referendum questions should present the options to voters clearly and simply and that:

    "We would assess the question using our [Referendum question assessment] guidelines, taking account of evidence from research with voters, and discussions with key stakeholders and plain language and accessibility experts" (p 81).

156.  Witnesses were unanimous in agreeing that referendum questions should be worded in accordance with the broad principles outlined by the Electoral Commission. There was disagreement however as to whether multi-option questions[23] were compatible with these principles.

157.  Peter Browning and Navraj Singh Ghaleigh feared that multi-option questions might confuse voters (p 114 and p 141). Professor Butler asserted that multi-option questions were difficult because "countries have tried triple-question referendums or quadruple-question referendums and you get into tangles about what is meant and possible litigation" (Q 5). Dr O'Malley suggested, "it might be cheaper and easier to commission an opinion poll on the subject" (p 131). Professor Saward was against multi-option questions because "there is not an issue where you could not locate something very like a 'yes' or 'no' principle at the core of it" (Q 36).

158.  Unlock Democracy told us that, whilst not preferable, multi-option referendums could be appropriate in some circumstances where the issue at stake could not be reduced to a single question (p 21). The de Borda Institute and the New Economics Foundation advocated the use of multi-option questions because "if a two-option question is posed when the debate is in fact multi-optional, the outcome may well be inaccurate" (p 117). Both Unlock Democracy and Caroline Morris pointed to the referendums in New Zealand in 1992 and 1993 on electoral reform as examples of the successful use of multi-option referendum questions (p 21 and p 129). Dr Catt, however, told us that the multi-option question worked in this case because the winning result was the "only one that any pressure groups were arguing for; nobody was arguing for the other three options" and notwithstanding this successful use of a multi-option question, she said that multi-option questions should be avoided wherever possible (Q 173).

159.  We recommend that the presumption should be in favour of questions posing only two options for voters but recognise that there may be occasions when multi-option questions are preferable. We look to the Electoral Commission to assess the merits of multi-option questions in their referendum question assessment exercise.

Information and the media

160.  The PPERA does not contain provision for the Electoral Commission to promote public awareness of specific issues relating to referendums. It does however give the Commission the responsibility to decide which permitted participants (if any) should be designated as a lead campaign organisation for each outcome and to determine and administer the level of the public grant (up to £600,000) which designated organisations should receive.

161.  The enabling Act[24] for the North East referendum gave the Electoral Commission powers to promote public awareness and the Commission encouraged people to register to vote and provided information on how to take part. This Act also gave the Electoral Commission powers to provide information explaining the "yes" and "no" arguments had they not been able to designate organisations as lead campaigners for each outcome of the referendum. The Electoral Commission told us that, if permitted in paving legislation for future referendums, they would inform voters about the referendum and how to take part (p 82).

162.  Many witnesses emphasised the importance of good public information provision in a referendum campaign. Professor Tierney told us that "education is a key factor if the referendum is to be deliberative" (Q 90). Professor Graham Smith agreed that there was a need for independent information provision (p 16). Unlock Democracy asserted that the quality of public information was key to the success of the referendum as a whole:

    "Where there are effective public education campaigns referendums can create high levels of support for significant changes to the way we are governed ... If the public education campaign is not properly resourced or is seen to be biased the referendum campaign is unlikely to have a positive effect on political engagement and may even increase disillusionment with the political process" (p 18).

163.  Several witnesses pointed to the provision of public information provision for the New Zealand electoral reform referendums of 1992-93 as examples of excellence. Dr Catt told us that there was a, "year-long, very well-funded, independently-run education campaign that went with it [the 1992-93 referendums]. I think that is what makes the difference and it is expensive" (Q 158). In New Zealand the public education campaign ran alongside the campaigns to try and persuade voters to vote one way or another (Q 166). Unlock Democracy praised "the experience in New Zealand of the two referendums on electoral reform [which] demonstrates that setting up an independent body to provide information and run the public education process is money well spent and is in effect an investment in democracy" (p 22).

164.  The expense of good public information campaigns was asserted by Professor Weir who also warned of the danger of ill-informed results without a good public information campaign (Q 71). Baroness Kennedy highlighted that "well-informed members of the public reach good conclusions" (Q 64).

165.  The extent of government involvement in providing information to voters during a referendum campaign is critical. Lord Fraser told us that prior to the enactment of the PPERA, governments could, "under the guise of putting out information, resort to propaganda" (Q 112). He commended restrictions contained in the PPERA on central and local government putting out information during the 28 day period before a referendum that might have a bearing on the referendum (Q 105). The Electoral Commission suggested that this provision should be changed so that the restriction applied ideally from the start of the referendum period but at the very least from the 28 day period before postal ballot packs are issued (p 81).

166.  The Constitutional Reform and Governance Bill is currently going through Parliament. The Bill would confer on the Electoral Commission new power to promote public awareness but only in relation to the referendum on the voting system for parliamentary elections which is proposed in the Bill.

167.  We are concerned about the effectiveness of the regulation of information provision in UK referendums. We commend the model provided by the 1992-3 electoral reform referendums in New Zealand when an independent body provided information and ran the public education process.

Funding and campaigning organisations

168.  Box 3 below sets out the requirements of the PPERA relating to the funding of campaign organisations during referendum campaigns and also sets out the Electoral Commission's role in designating lead campaign organisations.


Requirements of the PPERA relating to funding of campaign organisations and Electoral Commission's role in designation
The PPERA provides that individuals and organisations who wish to campaign in a referendum may spend up to £10,000 in doing so without facing any restriction or control on their activity.

Permitted Participants

Those individuals or organisations that spend more than £10,000 must register with the Electoral Commission as a "permitted participant", and are then subject to the restrictions on campaign spending, donations and other activity set out in the PPERA. Permitted participants must name a responsible person to whom liability attaches for any breach of these restrictions. Permitted participants are subject to a maximum spending limit of £500,000, and must provide a return to the Commission as to their referendum expenses following the referendum. Where referendum expenses exceed £250,000, this return must be accompanied by a report prepared by a qualified auditor.

Designated Organisations

The Commission may (but is not obliged to) designate lead campaign organisations for each outcome in a referendum. If the Commission designates a lead organisation for one outcome then it must also do so for the other outcome(s). The spending limit for designated organisations is £5 million.


Designated organisations receive a grant from the Electoral Commission of up to £600,000 to spend on referendum expenses. The level of the grant and the conditions that attach to it are determined by the Commission. The grant is administered by the Commission. Additionally, designated organisations are entitled to one free item of postal communication to be delivered by the universal service provider, the use of rooms free of charge for holding public meetings, and the right to referendum campaign broadcasts.


All permitted participants are subject to controls on the donations that they are permitted to accept. These controls mirror the existing controls introduced elsewhere in the PPERA on permissibility of donations to political parties, candidates and other regulated entities. The PPERA specifies categories of permissible donor. Permitted participants cannot accept donations of more than £500 from impermissible donors. Permitted participants must record the details of donations that they receive above £500. Details of donations above £7,500 must be reported to the Commission alongside the referendum expenses return. Loans to permitted participants are currently unregulated.

Source: Government written evidence (p 93)

169.  Daran Hill and Lord Fraser had experience of running referendum campaigns prior to the enactment of the PPERA and considered that its provisions relating to campaigning and funding were a definite step forward. (Q 104) Lord Fraser said of his experience of raising funds for the "no" campaign in the Scottish devolution referendum that "we had to rely on the old-fashioned technique of simply begging letters. We did discover some people who were sympathetic to the cause who did contribute significant sums of money on an individual basis, but nothing like enough money to run a really serious campaign" (Q 104).

170.  Daran Hill explained why he welcomed the provisions of the PPERA:

    "I am particularly heartened by the existing legislation that has now come, in terms of recognising the 'yes' and 'no' campaigns and giving them proper status because for about half the campaign [the Wales devolution referendum campaign] ... there was no 'no' campaign until late June/early July. We were not really arguing with anyone. Then it came about almost overnight, where two members of the Labour party ... decided to start a 'no' campaign themselves ... It grew quite embryonically, but it did seem a relatively strange experience for four or five months—arguing against nobody" (Q 101).

171.  The Electoral Commission outlined the principles of how they selected lead campaign organisations:

    "I think in approaching the designation process we are clear that we are looking for a campaign organisation to be a 'yes' or 'no' campaign that had a broad base of support and I suppose our starting position would be that that is likely to be an umbrella type of organisation which brings together perhaps a range of political views within it" (Q 177).

172.  In relation to designation, Professor Butler warned that "if there are many sides to a referendum, it can be enormously complicated" and that this was made worse if the various organisations on one side of a referendum argument did not get on well with each other (Q 12). The Electoral Commission told us that in its experience it had not found it difficult to designate lead campaign organisations but some of the groups which were not designated did not agree with its decisions. In any future referendums it intended to make its decision-making relating to designation more transparent to the public (Q 177).

173.  A number of witnesses expressed concern about the spending restrictions set out in the PPERA. They were concerned that the current restrictions would allow a campaign organisation to split into a number of organisations each spending less than £10,000 and thus avoid the requirement to register with the Electoral Commission as a permitted participant. Unlock Democracy suggested that it "may be possible to bypass the campaign spending restrictions by having a diffuse movement rather than a centralised campaign" (p 22). Nigel Smith was more sceptical: "The Electoral Commission would not have been able to pin down any shadowy co-operation between them or the presence of richer donors sprinkling money surreptitiously" (p 145). Professor Hazell told us that "it has not yet been properly tested in a national referendum ... whether the Electoral Commission will be able effectively to control the campaign spend on both sides" (Q 8). Dr Wilks-Heeg noted "the Electoral Commission's own experience of attempting to enforce regulation relating to party finance have revealed the extent to which both political parties and donors to political parties seek to exploit loopholes in the law" (p 36).

174.  Clause 89 of the Constitutional Reform and Governance Bill currently under consideration by Parliament would amend the PPERA so that spending limits could be aggregated—this would allay the fears expressed in the previous paragraph.

175.  Current regulation governing funding and campaigning in a referendum has not yet been tested in a national referendum. We note the concerns about the possible loopholes in the provisions of the PPERA relating to the funding of referendum campaigns. We welcome the Electoral Commission's decision to make its decision-making relating to designating lead campaign groups more transparent.

The role of the Government and political parties

176.  Under the PPERA political parties who campaign in a referendum and spend more than £10,000 must register with the Commission as permitted participants. Their spending limit is determined by the share of the vote that they received at the last parliamentary General Election before the referendum, and ranges from £500,000 to £5 million. In addition, as we have noted,[25] there is a restriction on the publication of promotional material by central or local government for a period of 28 days before a referendum.

177.  There was some support expressed for the idea that governments should not enter referendum debates, to avoid biasing the debate or undermining one side or the other thanks to a perception of bias. Dr Matt Qvortrup claimed that "there is an emerging consensus that it is illegitimate for governments to spend taxpayers' money on partisan information, or other partisan activities using state apparatus" (p 135). Nigel Smith stated that governments should take part on the same footing as all other participants or be removed from the campaign (p 145). Lord Fraser said that whilst it would be extraordinary if governments did not take part in a referendum campaign they should not have an advantage over other participants (Q 113).

178.  Several witnesses explained that they thought that governments would always be engaged in referendum campaigns because, as Daran Hill put it "essentially British experience on referenda is that referenda are held on issues within the government programme" (Q 112).

179.  Current regulation regarding the role of government and political parties in a referendum has not yet been tested in a national referendum. Whatever role government and political parties play, it is necessary to ensure that the referendum process is seen by all to be fair.


180.  The level of voter turnout at an election or referendum is often used as an indication of how seriously the electorate takes an issue: the result from a low turnout is usually seen as less legitimate than that from a higher turnout. Likewise, a clear majority, perhaps over 55 per cent, is seen as more legitimate and decisive than a narrow victory. Accordingly, some referendums in some jurisdictions have required either turnout thresholds or "supermajorities".[26] The evidence that we received was broadly opposed to both in principle.

181.  Turnout thresholds were criticised by Unlock Democracy because they:

    "Can negate the positive, educational impact of referendums ... If the result is dependent on a certain level of turnout then those who wish to oppose the referendum do not need to engage with the debate and make their case to voters, they merely have to convince people to stay at home. This sets a dangerous precedent for democratic engagement. There is also a risk that people who have participated in the campaign and secure a majority but do not meet the turnout threshold will feel cheated and that political engagement is ineffectual" (p 19).

182.  Thresholds were dismissed by Professor Gallagher as "unnecessary and undesirable" in most cases (p 120). Nigel Smith similarly told us that thresholds should be avoided as far as possible (p 143). Professor Butler made the point that turnout thresholds are problematic because the "no" side can defeat a proposal simply by encouraging people to stay at home, "the thing to do if you are a negative person is to say, 'Don't vote' because a non-vote is equivalent to a vote in those circumstances" (Q 17). Baroness Kennedy pointed to a referendum in Italy where a proposal which required a turnout threshold had failed to be passed because of a campaign to encourage people not to vote: "People who were at all ambivalent and uncomfortable because of the profound nature of the question just did not vote. That was what happened. It failed because of the turn-out. The campaign was to not let people come out to vote" (Q 69). A further argument against a turnout threshold was advanced by Professor Tierney who, pointing to the Danish requirement of a 40 per cent turnout, said that "what you would take from it is that if you create a high threshold it can be very difficult to get things through" (Q 86).

183.  Professor Butler warned of the difficulties of working out the size of the electorate: "The electoral register represents only about 90 per cent of the electorate and about ten per cent of the names are dud names anyway, so what is the electorate? What about people who are plurally registered and so on? You have got to get your facts very accurately done if you have thresholds brought into the argument". He suggested that this uncertainty was a further argument against turnout thresholds (Q 17). Dr Wilks-Heeg expressed a strong concern about the use of electoral registers to provide a voter threshold because of the inaccuracy of the registers and because they were not designed to be used for that purpose (p 35).

184.  Supermajorities (where a referendum result is only deemed valid if it has received a specified proportion greater than 50 per cent of the votes cast) were argued by Professor Saward to be inherently anti-democratic, breaching the "one vote, one value" principle (Q 38). Professor Gallagher dismissed them in his evidence to us: "I do not see any justification for a requirement that a supermajority of more than 50 per cent should be required for a proposal to be deemed to have received the support of the people" (p 122). Professor Tierney told us that supermajorities were unnecessary in the UK context and he advocated simple majority decision-making because "the UK has traditionally not imposed any special majority requirements for constitutional change and for this reason it is difficult to see why they would appear in referendums (as they did in 1978/79). If other aspects of the process are appropriate and transparent then arguably this issue becomes less important" (p 50). He also pointed out that it is difficult to argue the case for supermajorities when they are not required in parliamentary votes (Q 97). Conversely Dr Qvortrup defended the use of voter thresholds. He considered that a result should be accepted "as long as a majority of those eligible (and registered) to vote have cast a ballot" (p 134). Professor Saward suggested that a threshold of "somewhere between 50 per cent of the electorate and the possibly higher figure of the turnout in the previous General Election" was defensible (Q 38).

185.  Michael Wills MP told us that the Government's view on the use of thresholds was that each referendum should be judged on a case-by-case basis and that there would sometimes be a case for a threshold requirement (Q 253).

186.  In spite of the weight of evidence against the general use of either voter thresholds or supermajorities, some witnesses, and even some of those who were against them in principle, maintained that on occasion such measures were justified.

187.  The first exceptional situation was if the referendum was seeking to implement a constitutional change. Professor Tierney argued that "there may be an argument for a threshold in terms of voter turnout" for referendums on "big constitutional issues" (Q 97). Professor Saward concurred that "there is a strong case in the UK for referendums on constitutional changes with turnout thresholds" (p 15). Professor Graham Smith agreed (Q 38).

188.  The second exceptional situation was in divided societies such as Northern Ireland. Professor Bogdanor explained that in a referendum in Northern Ireland "a simple majority, if composed almost entirely of the majority, Unionist community, might not be thought sufficient" and that "therefore a qualified majority large enough to ensure that at least a substantial proportion, if not a majority, of the minority community, as well as of the majority community, would be needed" (p 47). However, Professor Tierney suggested that "referendums are particularly dangerous ... in divided societies. Northern Ireland in 1973 and Bosnia in 1992 are examples where simple majority referendums simply made the situation worse rather than better" (Q 97). Many countries accordingly require regional "double majorities" or concurrent majorities for minority protection reasons: examples of this include Australia where a majority is required in at least four out of the six states in a national referendum and Switzerland where for some kinds of votes there has to be a majority in a majority of cantons (p 16). Some witnesses suggested that in any future UK-wide referendum it might be considered necessary to have regional concurrent majorities. Professor Graham Smith told us "there would be a concern, for example, in this country if a referendum went through and it was the South East only that voted en bloc. We might have to have some sort of regional concurrent majorities" (Q 38).

189.  We recommend that there should be a general presumption against the use of voter turnout thresholds and supermajorities. We recognise however that there may be exceptional circumstances in which they may be deemed appropriate.

Advisory or binding referendums?

190.  In Chapter 2 we considered the view put forward by some witnesses that referendums undermined representative democracy. A closely-linked issue is whether referendums should be binding on a sovereign Parliament.

191.  Professor Gallagher argued that referendums should be binding because "an indicative referendum is little more than an expensive opinion poll. If the electorate knows that the result is not binding, then there is an obvious temptation either not to vote or to use the referendum to express a view on something other than the issue at stake, such as the current performance of the incumbent government" (p 122). Dr O'Malley similarly told us "it is important that any referendum should be binding, otherwise the whole point of it is cast aside" (p 131). Caroline Morris criticised the advisory nature of citizen-initiated referendums in New Zealand because "it has essentially led to the referendum becoming an expensive form of opinion poll, and the indicative nature of the result has led to frustrations with the government response. This increases the likelihood of political disengagement" (p 127).

192.  A number of witnesses took the opposite view and pointed out that because the UK does not have a written constitution "as a matter of constitutional law a referendum cannot be binding in this country" (p 134) and the Government's evidence supported this. Michael Wills MP told us "I think the crucial thing here is that the referendum does not bind Parliament. In the end Parliament will make its own decision on that" (Q 253). Dr Maija Setälä, Academy Research Fellow, Department of Political Science, University of Turku, told us that, "the advisory character of referendums appears to be congruent with the idea of parliamentary sovereignty" (p 138).

193.  Despite referendums in the UK being legally advisory, a number of witnesses pointed out that in reality referendums might be judged to be politically binding. Dr Setälä argued that "in established democracies, it seems to be very difficult for parliamentarians to vote against the result of an advisory referendum" (p 139). Dr Blick similarly stated that "the political pressure upon a government seeking to ignore the outcome of a referendum would be immense" (p 111). More specifically Professor Bogdanor explained that "a clear majority on a reasonably high turnout would leave Parliament with little option in practice other than to endorse the decision of the people" (p 47).

194.  In practice, however, the UK Parliament can square the circle by passing legislation which does not come into effect until a referendum is held, or by agreeing to be bound by the result in enabling legislation. Professor Bogdanor thought that it would be possible in the UK to "frame a referendum provision by which legislation was required to come into effect with a 'Yes' vote, and required to be repealed with a 'No' vote, in other words, a mandatory referendum" (p 47).

195.  Related evidence concerned whether a referendum should be held before or after legislation on the referendum topic had been passed. Peter Browning told us that "it should precede the proposed parliamentary statute about which it is being held as then it will help inform parliament's decision [on the legislation]" (p 115). Professor Bogdanor, whilst acknowledging that this was not a simple decision, recommended that a referendum should be held before Parliament passed legislation on the topic to save parliamentary time (Q 83). On the other hand, Dr Qvortrup argued that because referendums are a constitutional safeguard it is preferable that referendums are held after the third reading of a bill (p 135). Professor Hazell said that there was no universal firm answer (QQ 12-13) whilst Unlock Democracy suggested that pre-legislative referendums should be indicative and post-legislative referendums should be binding (pp 21-22).

196.  Professor Gallagher concurred that the referendum should be held first but pointed to the facultative system used in Switzerland whereby it was possible for citizens to challenge laws by referendum after they had been passed (p 121).

197.  We recognise that because of the sovereignty of Parliament, referendums cannot be legally binding in the UK, and are therefore advisory. However, it would be difficult for Parliament to ignore a decisive expression of public opinion.

Overall summary of regulatory framework and the role of the Electoral Commission

198.  The PPERA was praised by some witnesses: Dr Qvortrup said that, "in international perspective, PPERA is seen almost as the gold standard in referendum regulation" (p 133); Navraj Singh Ghaleigh commended it because it ensured that "the preponderance of income, expenditure and political elites do not determine outcome" (p 141); Jenny Watson reassured us that, "broadly speaking the framework works" (Q 176).

199.  Despite this praise for the PPERA, it remains the fact that it has not yet been used as the legal basis for a UK-wide referendum. Unlock Democracy thought it was not able to judge the effectiveness of the legislation because "to date there has only been one referendum campaign run under the PPERA regulations and we do not feel this is enough experience to be able to judge the effectiveness of the legislation" (p 20). Professor Butler told us that the PPERA "did not seem to be very realistic. How it would get deciphered, if we did decide to have a referendum on Europe or human rights or anything like this, you would actually go to the 20 clauses in the PPERA and you would find it would not be a description of what was actually going to be happening out on the ground. It would not be a good guidepost at all" (Q 8).

200.  Although the PPERA has not been tested in a UK-wide referendum, a number of witnesses thought that the 2004 North East referendum showed that both the Act and the Electoral Commission could function effectively (QQ 118, 201). On the other hand Professor Hazell pointed out that the North East referendum in 2004 was not as high-profile or politically charged as a nationwide referendum on a subject such as membership of the euro. A UK-wide referendum would, he argued, therefore be more challenging for the Electoral Commission (QQ 14-5). The Electoral Commission told us that the North East referendum was run well. It analysed its experiences after that referendum and wrote to the Government requesting changes to be made to the legislative framework for referendums. The changes requested were (pp 80-81):

·  Creation of a statutory Regional Counting Officer role;

·  The Chief Counting Officer to have a power of direction in primary legislation over both Regional Counting Officers and Counting Officers to enable efficient organisation and co-ordination of the referendum;

·  The restriction on the publication of promotional material by central or local government to apply from the start of the referendum period;

·  The Commission to have powers to promote public awareness of the registration and voting processes at a referendum;

·  The Commission to have a discretionary power to provide information to voters on the referendum options if it is unable to appoint designated organisations;

·  Aggregation of spending limits for permitted participants who operate to a common plan to bring them into line with the rules on spending by third parties in election campaigns. This would prevent participants circumventing spending limits by registering separately but acting together;

·  A generic Conduct Order to set out the detailed regulations governing the administration of referendums held under the PPERA to ensure clarity and consistency for those involved in planning and running referendums and to allow them to develop a shared understanding of the rules that would apply to any referendum well in advance.

201.  A number of other witnesses highlighted the need for similar changes. Some of these issues were addressed by the Government in amendments to the Constitutional Reform and Governance Bill which is currently going through Parliament but at this stage in the Parliamentary session it remains to be seen whether this Bill will become law. Michael Wills MP indicated that, whilst the Government thought the PPERA was an effective one, they would keep it under review and were open to suggestions for improving it (Q 239).

202.  Any assessment of the overall regulatory framework relating to referendums and the role of the Electoral Commission are theoretical as neither has been tested in a UK-wide referendum. We therefore recommend that after the next UK-wide referendum:

·  The Electoral Commission should analyse its experience (as it did for the 2004 North East referendum) and make recommendations for change to the regulatory framework and its role; and

·  There should be thorough post-legislative scrutiny of the PPERA at an early date.

203.  We are sympathetic to the changes to the legislative framework suggested by the Electoral Commission following its analysis of the 2004 North East referendum. We recommend that the Government take steps to ensure that they are implemented.

23   A multi-option question is one which has more than two possible responses for voters to choose. It is an alternative to the "yes" or "no" option format. Back

24   Regional Assemblies (Preparations) Act 2003. Back

25   See para 165. Back

26   Examples include the British Columbia referendum on the electoral system, which required a 60 per cent yes vote; and Italian 'abrogative' referendums which require a 50 per cent turnout.  Back

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