European Union Referendum Bill - Constitution Committee Contents


European Union Referendum Bill


1.  The European Union Referendum Bill was introduced into the House of Commons on 28 May 2015. It was passed by the House of Commons on 8 September, and its second reading debate in the House of Lords took place on 13 October.

2.  The Bill makes provision for the holding of a referendum in the United Kingdom and Gibraltar on whether the United Kingdom should remain a member of the European Union. In our report Referendums in the United Kingdom, published in Session 2009-10, we stated that "if referendums are to be used, they are most appropriately used in relation to fundamental constitutional issues." Whilst we did not attempt to provide a precise definition of what constitutes a "fundamental constitutional issue", we noted that we would consider any proposal to leave the European Union to fall within that definition.[1]

3.  That is still our view. If the United Kingdom were to leave the European Union it would be the most significant change to the United Kingdom's constitutional arrangements in decades, with far-reaching effects on every part of our constitutional framework.

4.  We do not intend to comment on the Bill in detail. Although the referendum it institutes will be of the utmost constitutional importance, the Bill itself simply provides for the holding of a referendum. We welcome the fact that the Government has implemented many of the recommendations of the Electoral Commission—in particular those relating to the wording of the question and to the application of section 125 of the Political Parties, Elections and Referendums Act 2000 ('PPERA') during the referendum period. We do, however, draw to the attention of the House three issues which it may wish to consider during the passage of the Bill.

The timing of the referendum

5.  The Electoral Commission has stated that it would not expect a referendum on the UK's membership of the EU to be combined with another set of polls.[2] The Bill was amended in the House of Commons to state that the referendum must not be on 5 May 2016 or 4 May 2017 as these are dates on which existing polls are scheduled to take place. The House may wish to consider whether further restrictions are necessary to prevent the referendum being held on the same day as any other polls which are either unexpected or for which the dates are not yet known—for example, the next general election in Gibraltar, the date for which has not yet been set but which must take place before 19 April 2016.

Purdah

6.  The Bill was amended in the House of Commons so that section 125 of PPERA (setting out restrictions on the publication of promotional material by central and local government) will apply during the referendum. We note, however, that the Government has the power, through regulations, to mandate exemptions to those rules. We recognise that before doing so the Government would have to consult the Electoral Commission. The Government would also have to make any such regulations no less than four months before the date of the referendum, to ensure that the purdah arrangements were clarified well in advance of the referendum itself. Finally, any regulations would have to be agreed to by Parliament under the affirmative procedure. Notwithstanding these safeguards, the House may wish to ensure that the circumstances under which such regulations could be made are clearly set out by the Government during the passage of the Bill.

Designated organisations

7.  PPERA provides for a designated organisation to be appointed by the Electoral Commission as a lead campaign group for each side of the referendum debate. It does not allow the Electoral Commission to designate one organisation only; for there to be any designated organisations in a referendum campaign at least one from each side must apply.

8.  This arguably allows one side in a campaign to 'game' the system. If they are well funded but do not want the other campaign to receive the financial and other advantages of designation, then they simply fail to apply for designation. Notably, there was no designation in the Welsh referendum in 2011 because the Electoral Commission took the view that there were no lead campaigners that met the statutory test of adequately representing the 'No' side.[3] The danger of gaming was also raised in the context of the Scottish independence referendum. The Scottish Independence Referendum Act 2013 attempted to overcome this potential problem by allowing for the designation of one side only,[4] although in the end two campaigns did indeed apply for recognition.

9.  Whilst we consider it likely that there will indeed be applications for designation by each side, the House may wish to consider whether the Bill should be amended to avoid a situation where one side could, in effect, prevent the lead campaign group on the other side from being designated.


1   Constitution Committee, Referendums in the United Kingdom, (12th Report, Session 2009-10, HL Paper 99), para 94 Back

2   Electoral Commission, Scottish Independence Referendum: Report on the referendum held on 18 September 2014, (December 2014) p 40: http://www.electoralcommission.org.uk/__data/assets/pdf_file/0010/179812/ Scottish-independence-referendum-report.pdf [accessed 15 October 2015] Back

3   Electoral Commission, 'No lead campaigners for National Assembly referendum', 25 January 2011, http://www.electoralcommission.org.uk/i-am-a/journalist/electoral-commission-media-centre/news-releases-referendums/no-lead-campaigners-for-national-assembly-referendum. See also evidence from Richard Wyn Jones before the Referendum (Scotland) Bill Committee, Proceedings of the Scottish Parliament, 9 May 2013 http://www.scottish.parliament.uk/parliamentarybusiness/report.aspx?r=8286 [accessed 15 October 2015] Back

4   Scottish Independence Referendum Act (ASP) 2013, Schedule 4, para 6. Back


 
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