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Scotland's Future: Draft Referendum (Scotland) Bill Consultation Paper

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3 Regulating the Campaign

Chapter Summary

  • To ensure that the referendum campaigns are run in a demonstrably fair and transparent manner it is essential that there are rules in place governing participation. The campaign rules set out in the draft Bill are largely based on existing UK legislation covering elections and referendums.
  • The rules cover the regulation of the referendum by a Scottish Referendum Commission, the administration of the expenses of participants and limits on donations and spending.
  • The Scottish Government does not propose that there should be any public funding of campaigning.

The Need for Campaign Rules

3.1. Current law in the UK for running a referendum has its origins in the Fifth Report of the Committee on Standards in Public Life 16 which informed the Political Parties, Elections and Referendum Act 2000 ( PPERA). As the PPERA rules apply only to referendums held in consequence of an Act of the UK Parliament, separate provision is required for this referendum.

3.2. The Scottish Government believes that it is essential that there are rules in place to ensure that the campaigns are run in a demonstrably fair and open manner. The proposed regime is broadly based on the rules set out in PPERA. The aim is to create a level playing field for those involved in campaigning; no political party or organisation should have an unfair advantage over another. In particular, a single wealthy organisation or individual should not be able to influence the campaign disproportionately.

The Scottish Referendum Commission

3.3. The Scottish Government's intention is that the referendum is run to the highest international standards. It is therefore essential to ensure that the campaign rules are followed and policed. The Government believes that a regulator, in the form of a commission answerable to the Scottish Parliament, should be established to fulfil that role.

3.4. The draft Bill creates a commission - the Scottish Referendum Commission - on a one-off basis to monitor the referendum. Based on the model of the Electoral Commission, the Referendum Commission will:

  • take a fair and balanced approach to its activities and be seen to be operating in this manner;
  • report to the Scottish Parliament; and
  • be, and be seen to be, at no risk of Government influence in its affairs.

3.5. The Commission will, with limited exceptions, be completely independent of the direction of the Scottish Parliament and Government. The draft Bill proposes that there should be three Commissioners, one of whom will act as Chair. Recognising the politically sensitive nature of the referendum, elected politicians in the UK, Scottish and European Parliaments, and those with strong political affiliations over the past 5 years, are disqualified from becoming Commissioners. Each Commissioner will be nominated by the Scottish Parliament for appointment by Her Majesty The Queen. The Commission's staff must neither be politicians nor have held strong political affiliations over the past 12 months.

3.6. The Scottish Referendum Commission's functions will include:

  • publishing guidance for voters;
  • publishing guidance for Counting Officers;
  • publishing guidance for permitted participants (individuals or organisations campaigning in the referendum) on the returns they must make to the Commission in relation to the money they spend on campaigning and donations they receive;
  • observing the conduct of the referendum at polling stations;
  • observing the conduct of the count;
  • making copies of the returns detailing the money spent and donations received by permitted participants available for public inspection; and
  • publishing a report on the conduct and administration of the referendum.

Participants in the Referendum Campaign

3.7. Following Part 7 of PPERA, the draft Bill provides that, if an individual or an organisation (including a political party) wishes to spend more than £3,000 on campaigning, they will have to notify the Commission that they wish to be a 'permitted participant'.

3.8. A permitted participant will be subject to a higher spending limit as explained below.

3.9. The purpose of having declared permitted participants is to help to ensure an open campaign where those who wish to publicly support a particular outcome must publicly register that intention.

3.10. The draft Bill provides that a permitted participant may apply to the Scottish Referendum Commission to be the principal campaigner representing one of the outcomes of the referendum. These permitted participants are called 'designated organisations'. The approach to appointing designated organisations follows the rules set out in PPERA. For example, in the 2004 referendum on whether there should be a Regional Assembly for the North East of England, "Yes4thenortheast" (Y4NE) and "North East Says No" ( NESNO) were the respective 'designated organisations'. Other groups campaigning on the Yes side, including the Labour Party, the Liberal Democrats and certain unions were affiliated with Y4NE. On the No side the Conservatives and UKIP were affiliated with NESNO. The only organisation that ran a significant campaign independently of the other organisations was the "North East No Campaign" ( NENC).

3.11. A designated organisation will have a higher campaign spending limit than other permitted participants. In addition, each designated organisation will be entitled to one free mail-shot to every household in Scotland, or to every voter entitled to vote in the referendum, to promote its campaign. Designated organisations will also be entitled to use school rooms or other rooms for public campaign meetings during the four-week period before the referendum is held.

No Public Funding

3.12. The draft Bill does not provide for grants of public money to be made available to those who wish to campaign.

Spending Limits for Participants in the Referendum Campaign

3.13. For individuals or bodies that are not permitted participants, PPERA imposes a spending limit of £10,000 as a general restriction for UK-wide referendums. In recognition of the fact that this referendum will take place in Scotland only, the Scottish Government believes that the limit should be scaled down to £3,000.

3.14. There are no useful direct precedents which could be used as a starting point for spending limits for designated organisations, political parties and other groups. The limits for the 2004 North East of England referendum were so high as to have no effect (even the Y4NE campaign, which was by far the highest spending campaign, spent just over half the amount set as its spending limit) and the limits set out in PPERA itself are for UK-wide referendums. The Scottish Government therefore considers that the spending limits for political parties in Scottish Parliament election campaigns are the best starting point. A party contesting every seat in the Scottish Parliament is subject to a spending limit of about £1.5 million. However, while the referendum will be a national poll and can therefore be compared with the national element of an election campaign, there will not be local constituency campaigns in respect of any candidates. In the light of that, the Scottish Government proposes that designated organisations should each have a campaign spending limit of £750,000.

3.15. For referendums held under UK legislation, PPERA permits the largest political parties (those with over 30% of total number of votes cast at the last UK Parliamentary election) to spend the same as the designated organisations. In practice it is likely that the main political parties will be part of the designated organisations. Therefore, while political parties should not be prevented from campaigning outside of the designated organisations, the Scottish Government believes there is a case for more restrictive limits on them than the PPERA approach would provide. This would help to ensure that no group dominates the public debate by both being the main part of a designated organisation, whilst also having a large spending limit by virtue of being one of the political parties represented in the Scottish Parliament. The Scottish Government therefore proposes that the registered political parties currently represented in the Scottish Parliament should be limited to a campaign spend of £100,000, in addition to any spending as part of a designated organisation. This would still allow a significant national campaign to be carried out separately from any designated organisation.

3.16. For other groups and political parties which wish to campaign outside of the designated organisations as permitted participants (whether or not they also form part of such a group) the Scottish Government examined the limit set on third-party campaign expenditure at Scottish Parliament elections. This is currently set at £75,800. For the purposes of the referendum, and again in recognition of the lack of any constituency or regional vote for candidates, the Scottish Government proposes a spending limit for such groups of £37,000. This should be enough to allow other groups to have some national impact but is also restrictive enough to encourage people to join the designated organisations if they wish to contribute more substantially.

3.17. Table 2 summarises the campaign spending limits proposed for the referendum.

Table 2: Referendum campaign spending limits

Type of organisation

Proposed spending limit

Designated organisation

£750,000

Political party represented in Scottish Parliament

£100,000

Other permitted participants

£37,000

Individuals or bodies that are not permitted participants

£3,000

3.18. Breach of these limits is treated as an offence in the same way as PPERA treats such breaches. Sanctions for non-compliance are set out in the draft Bill.

Referendum Expenses

3.19. The draft Bill provides that expenses count towards the spending limits if they support a campaign or promote an outcome. The purpose of this definition is to capture every activity that is related to campaign expenditure and the definition is, for that reason, quite broad. Expenses that count towards the spending limits include:

  • campaign broadcasts;
  • advertising;
  • unsolicited material addressed to voters;
  • any material that provides information about the referendum, its questions or promotes an outcome;
  • market research or canvassing;
  • press or media conferences;
  • transport costs for the purposes of obtaining publicity about the referendum; and
  • rallies and other forms of public meetings.

3.20. Cost savings associated with property, facilities or services that are provided free of charge or at a preferential rate are also counted as referendum expenses if they exceed £200. These are referred to as 'notional referendum expenses' in the draft Bill and must be declared to the Commission, along with the other expenses.

3.21. To ensure that the referendum campaign is conducted openly, it is crucial that the campaign expenditure incurred is properly accounted for and reported. Permitted participants must demonstrate that they have maintained control over what they have spent on their campaigns so that their spending can be reported and made public. The draft Bill therefore contains detailed rules, based on the provisions of PPERA, to ensure that each participant has appropriate procedures in place to authorise and account for its expenses.

Donations Made to Permitted Participants in the Referendum Campaign

3.22. 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 political parties solely for the purposes of the referendum.

3.23. However, political parties will not be the only bodies wishing to campaign for a particular outcome at the referendum. The draft Bill therefore deals with controls of donations to permitted participants that are not registered parties or are minor parties. The rules are again based very strongly on the existing legislation for referendums in the UK, set out in PPERA. In general terms, the rules define what donations are allowed, both by description and by monetary value (or a determination of monetary value), who is allowed to make a donation and what a permitted participant must do to record and report the donations of over £500 that they receive. As under PPERA, permitted participants cannot accept anonymous donations or donations from individuals or organisations from outside the UK.

Returns to the Commission by Permitted Participants about their Campaign Finances

3.24. Permitted participants will be required to provide a report to the Commission about their finances. The draft Bill proposes a requirement that a person designated by a permitted participant as the 'responsible person' (in the case of a registered political party, the treasurer) must make a return to the Scottish Referendum Commission within 6 months of the date of the referendum setting out full details of expenses and donations. The Commission must make copies of the returns available for public inspection.

Government Publications during the Referendum Campaign

3.25. The Scottish Government's aim is that the campaign should be seen to be fair and should operate on a 'level playing field' for all participants in the referendum. In support of this principle, the Scottish Government recognises that there should be no undue Government influence on the campaign.

3.26. The draft Bill provides that, for the 28 day period before the date of the referendum, the Scottish Ministers and certain public authorities in Scotland cannot publish any material providing general information about the referendum, dealing with issues raised by the questions to be voted on in the referendum, putting any arguments for or against a particular answer to the questions to be voted on, or which is designed to encourage voting in the referendum. This follows the approach taken in the run-up to elections.

QUESTION 6:

What are your views on the proposed rules for the referendum campaign?