13. The Electoral Commission was also given responsibility for promoting public awareness for voters in the 2011 Welsh and UK referendums.
14. Both governments agree that the Electoral Commission should fulfil all these functions in respect of the independence referendum, with the exception of the conduct of the poll and announcement of the result, and the giving of grants (the Scottish Government proposes that there will be no grants of public money to lead campaign organisations). In its role of regulating the campaign and campaign spending, the Electoral Commission will report to the Scottish Parliament.
15. The Scottish Government proposes that the conduct of the poll and the announcement of the result should reflect the arrangements for local and parliamentary elections in Scotland and will be consistent with Scotland’s electoral management structure, co-ordinated by the Electoral Management Board. The poll and count will be managed in the same way as those elections, by local returning officers (designated for the referendum as 'counting officers') and directed by a Chief Counting Officer (CCO). The Scottish Government proposes that the CCO should be the Convener of the Electoral Management Board.
Referendum campaign regulation
16. Both governments agree on the importance of ensuring that the referendum campaign is subject to regulation that ensures that the referendum is fair and commands the confidence of both sides of the debate. The Referendum Bill introduced into the Scottish Parliament by the Scottish Government will include provision for the referendum rules. The governments agree the regulations for the independence referendum campaign should be based on those set out in Part 7 of PPERA.
17. The Order contains specific provision applying some of the PPERA rules to an independence referendum where it would be outside the Scottish Parliament’s legislative competence to make such provision. These provisions relate to referendum campaign broadcasts and the sending of mail-shots free of charge.
Referendum campaign broadcasts
18. PPERA provides that only referendum campaign broadcasts made by or on behalf of designated campaign organisations can be broadcast. The Communications Act 2003 requires Ofcom to impose licence conditions on broadcasters requiring them to observe rules set by Ofcom relating to referendum campaign broadcasts.
19. The agreement between the Secretary of State for Culture, Media and Sport and the BBC requires the BBC to broadcast referendum campaign broadcasts and provides that it is for the BBC Trust to determine the basis on which these are broadcast. Both Ofcom and the BBC are required to have regard to the views of the Electoral Commission when making provision in respect of referendum campaign broadcasts. In both the Communications Act 2003 and the agreement with the BBC 'referendum campaign broadcast' has the same meaning as in PPERA.
20. The Order makes provision applying the provisions in PPERA relating to referendum campaign broadcasts to an independence referendum. This will mean that Ofcom, the BBC and the Electoral Commission will have the same role in relation to an independence referendum as they would in relation to a PPERA referendum.
Ensuring impartiality of broadcasters
21. The governments agree that it will be important to ensure that broadcast coverage of the Referendum is impartial. Broadcasters, Ofcom and the Electoral Commission will discuss the best way to achieve this.
22. PPERA allows a designated campaign organisation to send one mail-shot free of charge to every elector or household. This service is provided by Royal Mail and funded by the UK Parliament through the Consolidated Fund.
23. The Order makes provision applying this provision of PPERA to an independence referendum. This will enable the designated campaign organisations to send out one mail-shot free of charge to every elector or household and for the Royal Mail to recover the cost of postage from the Scottish budget (the 'Scottish Consolidated Fund').
24. Both governments recognise that campaign finance will be an important issue for those campaigning in the referendum, for the Electoral Commission in regulating the referendum, and for people in Scotland. It is important for each of these that the rules are fair and provide a level playing field.
25. The Referendum Bill to be introduced by the Scottish Government will provide for the spending limits in the regulated period for the independence referendum. Both governments agree that the rules and standards set out in PPERA provide the basis for setting the limits.
26. PPERA sets out spending limits for referendums held on a UK-wide basis and a mechanism for the Secretary of State to set the limits for sub-UK referendums by secondary legislation. In setting such limits, the Secretary of State must consult the Electoral Commission and have regard to its views. Whilst the UK Government is not statutorily required to accept the Commission’s recommendations, it regards the guidance of the Electoral Commission as a key consideration and has so far always followed the advice of the Electoral Commission when setting spending limits for referendums held under the PPERA framework. If the Secretary of State does not accept the views of the Commission on the appropriate limits, he or she is statutorily obliged to lay a statement before both Houses of Parliament explaining his or her reasons for departing from its recommendations.
27. The Scottish Government proposes that the regulated period for the independence referendum should be the 16 weeks ending on the date of the referendum. In setting the spending limits for the regulated period for the independence referendum, the Scottish Government will analyse and consider the responses to its consultation, consult with both existing referendum campaigns – neither of which was in existence during the Scottish Government’s consultation period – and have regard to the Electoral Commission’s views and will set out its proposals, and the evidence on which these are based, before the Referendum Bill is considered by the Scottish Parliament. The Referendum Bill, including the proposed spending limits, will be subject to the established Scottish Parliamentary procedures and scrutiny. The Bill, like any other Bill in the Scottish Parliament will, when introduced, be accompanied by a Policy Memorandum. The Policy Memorandum will set out details of the consultation process for setting spending limits and details of any alternative approaches to any of the issues considered. This will include a statement of reasons if there is any departure from the Electoral Commission’s advice on spending limits.
28. Donations to registered political parties are already subject to a regulatory regime established in Part 4 of PPERA. There is, therefore, no need to create an additional set of rules regulating donations to registered political parties solely for the purposes of the referendum. Political parties will not be the only bodies wishing to campaign for a particular outcome at the referendum. The Referendum Bill to be introduced by the Scottish Government will deal with controls of donations to permitted participants that are not registered parties or are minor parties. As under PPERA, permitted participants will not be able to accept certain anonymous donations or certain donations from individuals or organisations from outside the UK.
Government activity during the 28 days before the referendum
29. It is customary for there to be a period before elections in the UK, during which Ministers and other public bodies refrain from publishing material that would have a bearing on the election. Section 125 of PPERA sets out the restrictions that apply to Ministers and public bodies in the 28 days preceding referendums held under that Act. Both governments recognise the importance of respecting the 28-day period prior to a referendum, in the same way that both governments already respect each other’s pre-election period for Parliamentary elections. The Scottish Government will set out details of restricted behaviour for Scottish Ministers and devolved public bodies in the Referendum Bill to be introduced into the Scottish Parliament. These details will be based on the restrictions set out in PPERA. The UK Government has committed to act according to the same PPERA-based rules during the 28 day period.
30. The United Kingdom and Scottish Governments are committed, through the Memorandum of Understanding 4 between them and others, to working together on matters of mutual interest and to the principles of good communication and mutual respect. The two governments have reached this agreement in that spirit. They look forward to a referendum that is legal and fair producing a decisive and respected outcome. The two governments are committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.
4: Memorandum of Understanding
Memorandum of Understanding and Supplementary Agreements between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee, 2000, as updated in September 2012.