European Union Referendum
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.
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
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 Commissionin
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.
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 knownfor 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.
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.
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.
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,
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
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/
[accessed 15 October 2015] Back
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
Scottish Independence Referendum Act (ASP) 2013, Schedule 4,
para 6. Back