Written evidence from the Electoral Commission (EUR 01)

The Electoral Commission’s role in referendums

1.          The Electoral Commission has specific responsibilities and functions in relation to the delivery and regulation of referendums held under the Political Parties, Elections and Referendums Act 2000 (PPERA), which applies to any referendum Bill brought before the UK Parliament unless specifically stated otherwise.

2.          Our responsibilities under PPERA include:

• Commenting on the intelligibility of the referendum question.
• Registering organisations or individuals who want to campaign in the referendum.
• Considering and approving applications for designation as the lead campaign group for each referendum outcome.
• Making grant payments to the approved designated organisations.
• Monitoring spending on referendum campaigning, in line with the referendum spending limits imposed by PPERA.
• Providing advice and guidance on the rules to campaigners
• Monitoring and securing compliance with campaign donation, loan and spending controls
• Reporting on the administration of the referendum and referendum campaign spending.

3.               The Chair of the Commission, or a person the Chair appoints, is the Chief Counting Officer for the referendum and responsible for certifying the outcome of the referendum. The Chief Counting Officer is responsible for the conduct of the referendum and for ensuring the accuracy of the overall result.

4.          This written evidence sets out the Commission’s views on the European Union Referendum Bill 2015 and Section 125 of PPERA.

Introduction

5.          The Electoral Commission welcomes the opportunity to submit written evidence to the first part of the Committee’s inquiry into the European Union Referendum Bill, which focuses on “purdah and civil service impartiality”.

6.          “Purdah” is a term often used to describe the period of time immediately before elections or referendums when specific restrictions on the activity of civil servants are in place. Guidance is issued to civil servants, usually by the Cabinet Office, on the principles that they should observe in relation to the conduct of Government business in the pre-election period, and there is also statutory guidance for local authorities about publicity during the period just before local elections. Separately, section 125 of PPERA sets out restrictions, during a specified period before a referendum, on the publication by the Government and other public bodies of material that would have a bearing on the referendum.

7.          The Commission has already set out its views on the disapplication of section 125 of PPERA for the EU Referendum in briefings to Parliament. In our briefing to Members before Committee Stage consideration of the of the European Union Referendum Bill in the House of Commons, we commented that:

“The Commission supports proposals to reinstate restrictions on the publication of promotional material by central and local government. The Bill provides that section 125 of PPERA (which places restrictions on the publication of promotional material about referendums by Ministers, government departments, local authorities and certain other public bodies during the period of 28 days immediately before polling day) would not apply at the referendum. This could mean that governments and others will be free to spend unlimited amounts of public funds promoting an outcome at the referendum right up until polling day.”

8.          As well as setting out the Commission’s views on Section 125 of PPERA in this area, we have also provided answers here to questions on which the Committee has sought views.

Section 125 of the Political Parties, Elections and Referendums Act 2000

How did Section 125 (statutory purdah) come to be included in PPERA? What case was made at the time and by whom?

9.          Restrictions on promotional activity carried out by central and local governments during referendums were recommended by the Committee on Standards in Public Life (CSPL) in its Fifth Report on The Funding of Political Parties in the United Kingdom, published in 1998. The Committee argued that “it is extraordinarily difficult, if not impossible, for the government of the day to offer purely objective and factual information in the course of a referendum campaign, especially when, as will usually be the case, itself it is a party to the campaign.”[1]

10.      The Political Parties, Elections and Referendums Bill, which was introduced in Parliament in 1999, included a clause which gave effect to the CSPL recommendation. The Clause remained in the Bill as it was debated during its passage through Parliament, and was included following some amendments as section 125 of PPERA on Royal Assent.

11.      The Electoral Commission was also established by PPERA, and took on its functions after the Act received Royal Assent in 2000.

What are the restrictions which are applied by Section 125, and how justified are the fears expressed by the Government that such restrictions are “unreasonable and inappropriate”?

12.      Section 125 of PPERA places restrictions on the publication of promotional material about referendums by Ministers, government departments, local authorities and other bodies whose expenses are defrayed wholly or mainly out of public funds, during the period of 28 days immediately before polling day for a referendum. It applies to any material which:

a)       provides general information about a referendum;

b)       deals with any of the issues raised by the referendum question;

c)        puts any arguments for or against any referendum question; or

d)       is designed to encourage voting at a referendum.

13.      Section 125(3) does, however, set out a number of exceptions to the general restriction, including issuing press notices and making material available to people in response to specific requests for information.

14.      While section 125 specifies certain prohibited activities, it does not specify any sanctions for breaches of that prohibition. The Electoral Commission does not have any statutory enforcement role or powers in relation to section 125 of PPERA. Our statutory reviews of the administration of referendums since 2004 have not identified any significant concerns raised by governments or others about the restrictions provided by section 125.

15.      Paragraph 26 of Schedule 1 to the European Union Referendum Bill currently before Parliament would disapply section 125 of PPERA for the purpose of the proposed referendum on the UK’s membership of the European Union only.

What particular restrictions does the Government believe should not be applied by Section 125, and how could Section 125 be amended to address any legitimate concerns by the UK Government? What non-statutory alternatives to Section 125 could be sufficient? 

16.      The Electoral Commission welcomes the Government’s commitment, during the Committee Stage debate on the Bill in the House of Commons, to reconsider its approach in relation to the Bill provision that would remove the prohibition set out in section 125 of PPERA.

17.      It is important that any changes to the existing rules for referendums set out in PPERA do not undermine public confidence in the integrity and fairness of the referendum process. We will consider the implications of any further proposals by the Government to amend the application of section 125 of PPERA for the purposes of this specific referendum.

18.      In reconsidering its approach, the Government should set out in detail what activity it believes it would be appropriate for Ministers, government departments and local authorities to carry out during the 28 days before polling day for the referendum. The Government should also clarify which of these activities it believes would be prohibited under section 125 of PPERA, and explain how activities which would not be prohibited would be consistent with the CSPL recommendation about the need for restrictions on promotional activity carried out by central and local governments during referendums.

What similar restrictions exist in other comparable countries that conduct referendums, and what lessons can be drawn from such comparisons and their experience of referendums?

19.      The Council of Europe advisory body the European Commission for Democracy Through Law (known as the Venice Commission) adopted its Guidelines on the Holding of Referendums in 2006.[2] The Venice Commission recommended that:

“Contrary to the case of elections, it is not necessary to prohibit completely intervention by the authorities in support of or against the proposal submitted to a referendum. However, the public authorities (national, regional and local) must not influence the outcome of the vote by excessive, one-sided campaigning. The use of public funds by the authorities for campaigning purposes must be prohibited.”

20.      The Venice Commission also published comparative research on the legislative framework for referendums in various states in 2005, which recognised a range of approaches to restrictions on the use of public funds to promote campaign arguments during referendums.[3]

21.      In New Zealand, there is no specific restriction on Ministries, Government agencies and local government bodies and their employees in relation to publishing promotional material in relation to referendums. However, in general, they are subject to neutrality rules and codes of conduct.[4]

22.      In Australia, referendum legislation prevents the Australian Government spending public money advancing, promoting or advertising either the ‘Yes’ or ‘No’ arguments in a particular referendum.[5] There are specific exceptions to the prohibition in order to allow the Australian Electoral Commission to send information to voters, including pamphlets setting out the arguments on each side of the referendum question. In 2013 a Bill was passed by the Commonwealth Parliament to allow for a temporary suspension of the prohibition on Government spending on promoting the case for and against a referendum which was planned to have been held during 2013.[6]  

What would be the consequences of the disapplication or restriction of Section 125 at the EU referendum and potentially for future referendums?

23.      As we highlighted in our report on the Scottish Independence Referendum, the underlying legislative basis for the regulation of campaigns at referendums held under PPERA is that campaigners (whether individual campaigners or campaign organisations) will come forward to put the arguments for each side of the debate to voters. These campaigners are subject to a regulatory regime including limits on the amount that they can spend during the regulated referendum period.

24.      The removal of restrictions on the publication of promotional material by central and local government creates a risk that the use of significant amounts of public money for promotional activity could give an unfair advantage to one side of the argument.

25.      It also undermines the principle of having spending limits for registered campaigners if governments can spend unlimited funds on paid advertising during the period when campaigners are restricted in the amount they can spend. This has the potential to be particularly significant in the case of a referendum on the UK’s membership of the European Union where there will be four governments in the UK with views on the issue being debated.

26.      We agree 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. We do not believe that these restrictions would stop politicians setting out their views in their personal or party capacity (including government Ministers).

What lessons can be learned from previous UK referendums in the UK held under the PPERA?

27.      Since the first referendum held under PPERA in 2004, the Electoral Commission has published a number of reports recommending legislative changes intended to improve the administration of referendums and the regulation of referendum campaigners, drawing on our practical experience.[7] Our most recent report was published in December 2014 following our oversight of the Scottish Independence Referendum.[8]

28.      In addition to the specific restrictions currently set out in section 125 of PPERA, we have recommended that relevant governments should publicly commit to and refrain in practice from any paid advertising, including the delivery of booklets to households, that promotes a particular referendum outcome for the full duration of the regulated referendum period. We first identified the need for longer restrictions on the use of public money to publish promotional material following the 2004 North East referendum, which was the first to be held under the PPERA framework.

29.      We also suggested following the 2011 referendums that there would be benefit in clarifying the scope of the restrictions set out in section 125 of PPERA, including what consequences, if any, should follow any breaches of the restrictions. It is 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.

30.      At the Scottish independence referendum the Scottish Government addressed part of this recommendation by restricting the information that Scottish Ministers and certain publicly funded bodies could publish about the referendum in the last 28 days before the poll. The restrictions related to publishing general information about the referendum as well as about the issues and arguments. The restrictions also applied to encouraging people to vote. The UK Government was not covered by the referendum legislation but, as set out in the Edinburgh Agreement, agreed to abide by the same restrictions.

31.      Both governments published guidance about how they would implement the restrictions and how queries about the guidance could be raised with the respective civil service, although neither government set out details about the process for dealing with complaints or the consequences of breaching the guidance.[9] To ensure that information was available to those who may have questions or complaints about Government activities we published a factsheet on our website providing information on the restrictions and the contact details for the appropriate departments in both the Scottish and UK.[10]

What are the consequences for the impartiality of civil servants in the event that Section 125 is repealed or restricted by amendment, in respect of the referendum? What was the experience of the Civil Service in referendums before Section 125 of PPERA came into force?

Should the Government implement PASC’s recommendation for an additional paragraph to be included in the Civil Service Code, in order that the similar provisions which apply to political parties and elections should also apply in respect of ‘yes’ and ‘no’ campaigns and referendums?

32.      We agree it would help support confidence in the integrity of the referendum if the responsibilities of the Civil Service in relation to referendum activities are as clear as possible.

July 2015