Draft referendum bill: consultation analysis

3. Summary of responses from key organisational stakeholders

3.1 This chapter summarises the responses of key organisational stakeholders who responded to the consultation. The key organisational stakeholders in this context are organisations with (statutory or non-statutory) responsibility in relation to the regulation and oversight of elections, those with expertise in the law, and the organisation with responsibility for liaising with UK broadcasters in relation to campaign broadcasts. These are a small subset of the (41) organisational responses received in the consultation (see Chapter 2, paragraph 2.6 and Annex 1). The views of all other respondents are discussed in Chapters 4 and 5, with the analysis presented on a question-by-question basis.

3.2 The organisations whose responses are summarised in this chapter are:

• Electoral Commission
• Electoral Management Board for Scotland
• Scottish Assessors Association Electoral Registration Committee
• Law Society of Scotland
• Broadcasters' Liaison Group.

Electoral Commission

3.3 The Electoral Commission is an independent body established in 2000 to regulate party and election finance and to set standards for the conduct of elections and referendums. The submission from the Electoral Commission addresses the specific questions asked in the consultation paper in some detail and also makes additional recommendations that they would want the Scottish Government to reflect in any referendum bill.

3.4 In particular, the Electoral Commission in its submission:

• Confirmed that it supports the proposed allocation of roles performed by the Convenor of the Electoral Management Board for Scotland as Chief Counting Officer, the Electoral Commission, Counting Officers and Electoral Registration Officers
• Stated that it should be asked to review the intelligibility of any proposed referendum question (whether the wording is the same or different to that used in 2014)
• Was content with its responsibilities relating to the accreditation of observers and public awareness, and for the proposed provisions for the reimbursement of the Commission's costs
• Confirmed that the franchise for any future referendum is a matter for the relevant parliament to decide
• Was pleased to note that the draft bill addresses many of the regulatory recommendations made following the 2014 referendum
• Supported the proposed changes to rules on permissible participants and on transactions between qualifying and non-qualifying persons.

3.5 The Electoral Commission also suggested that further dialogue with the Scottish Government would be useful in relation to a wide range of detailed issues including: (i) the timetable for designating lead campaigners, (ii) rules on imprints on non-printed material, (iii) late claims and payments processes, (iv) the Electoral Commission's sanctioning powers, (v) limiting donations to political parties from certain sources, (vi) restricting the ability for a political party campaigns officer to be the responsible person for more than one campaigner, (vii) the registration requirements for unincorporated associations, (viii) rules for reporting the sources of funding before the poll, (ix) reporting requirements when campaigners work together, (x) restrictions on the publication of promotional material by central and local government, (xi) the relevance of any changes ( e.g. the distribution of the share of the vote in the Parliamentary election in 2016) to factors that informed the basis of the 2014 spending limits, (xii) the benefits available in the case of designation of only one lead campaigner, (xiii) access to all the necessary registers to comply with the campaign rules, (xiv) timing of any referendum / referendum date, and (xv) timing of legislation for future referenda.

3.6 Note that many of the detailed issues discussed by the Electoral Commission were also touched upon by individual respondents. (See Chapter 5 in particular.)

Electoral Management Board for Scotland

3.7 The Electoral Management Board for Scotland ( EMB) was created by the Local Electoral Administration (Scotland) Act 2011, which gave the Board 'the general function of co-ordinating the administration of Local Government elections in Scotland'. In its response to the consultation, the EMB addressed a range of issues relating to the specific questions and also made some broader comments on the management of a future referendum.

3.8 In particular, the EMB confirmed its support for the proposed management arrangements in relation to the appointment of a Chief Counting Officer and the specific role for the Electoral Commission in monitoring, regulating and reporting on the referendum.

3.9 The EMB noted that adequate resource and sufficient time would be required to plan for and procure the various elements which are needed for such a major event. The response described the approach adopted by the CCO in 2014 which the EMB argued had been crucial in ensuring the integrity of the referendum process and confirmed that a similar approach would be adopted by the CCO in any future referendum.

3.10 The EMB referred to and endorsed the comments made in the Electoral Commission response and confirmed that it agreed with the views expressed by the Electoral Commission in relation to:

• The timing of any referendum ( i.e. ensuring that the referendum would not be held on the same day as other significant scheduled polls and that legislation is clear at least six months before it will be implemented)
• The statement that 'the rules for the conduct of the referendum poll and count should be based on those applying to the conduct of elections…should be updated to reflect changes to the conduct of election which have been made since the 2014 referendum'
• The changes to the rules on permissible participants and on transactions between qualifying and non-qualifying persons. The EMB response highlighted the importance of clarity in respect of the designation of permissible participants in order that counting officers are easily able to engage with them as appropriate during the campaign and at the count.

3.11 The EMB also referred to and endorsed the Scottish Assessors Association proposals (see below) in relation to voter registration.

Scottish Assessors Association Electoral Registration Committee

3.12 The Scottish Assessors Association ( SAA) Electoral Registration Committee, a voluntary organisation, aims to facilitate a consistency of approach in relation to the administration of electoral registration across Scotland. As would be expected, their response focused mainly on issues relating to voter registration.

3.13 The SAA welcomed the overall approach to the management of the referendum proposed in the consultation document, and much of the response simply described the content of the Bill, especially in relation to issues of franchise. The SAA response also included the following substantive points:

• Any legislation should be enacted a full six months prior to the publication of any notice of the referendum.
• The specific provision in relation to registration officers' expenses was welcomed. The arrangements for recovery of expenses will need to be sufficiently flexible to cater for the unpredictable nature of resource demands placed on registration officers.
• The reference in Schedule 2 paragraph 51 to 'dates of birth' should be amended to refer to the 'dates on which electors attain the age of 16'.
• The move to align the absent voting provisions with those that apply in local government and parliamentary elections was welcomed.
• The application deadlines set out in Schedule 2 paragraph 19 should be replaced with standard application deadlines for postal and proxy voting.
• In the interests of consistency, consideration should be given to replacing the 2013 Act provisions for absent voting with those that are provided in the Scottish Parliamentary (Elections etc.) Order 2015.
• The Committee would welcome a move towards consolidation and further standardisation of legislation that concerns electoral administration as a whole.

Law Society of Scotland

3.14 The Law Society is the professional body for Scottish solicitors, with an overarching objective to 'lead legal excellence'. The response to the consultation was prepared by members of the Constitutional Law Sub-Committee. It focused on legal and constitutional issues, and did not specifically address the questions set out in the consultation document.

3.15 The Law Society response stated that any Section 30 Order that might be agreed between the United Kingdom Government and the Scottish Government to hold a referendum should be in similar terms to the agreement concluded in Edinburgh on 15 October 2012, and the response goes on to describe the main features of that agreement. The response affirms that provided the Section 30 Order is passed by both Parliaments there would be 'no doubt it would be competent to introduce such a Bill into the Scottish Parliament'.

3.16 The Law Society response also recommended that before introduction of the Bill the Scottish Government should publish a formal paper detailing 'the key milestones and general approach upon which it will proceed from the result of any referendum in the event of a yes vote to completion of independence'. Moreover, according to the Law Society, it would be necessary for the United Kingdom Government to detail 'how it would intend to facilitate the achievement of Scottish independence in the event of a yes vote'.

Broadcasters' Liaison Group

3.17 The Broadcasters' Liaison Group ( BLG) represents all the UK broadcasters carrying party political and referendum campaign broadcasts. (The Electoral Commission attends BLG meetings with observer status.)

3.18 The BLG's sole concern with the proposals for any future referendum is in relation to 'one-sided designation', which, according to the consultation document would remain unchanged from the provisions set out for the 2014 referendum. ^[4] According to BLG, one-sided designation would mean 'impartiality in respect of Referendum Campaign Broadcasts would be impossible to achieve without breaching the applicable legislation'. BLG would like to see entitlement to Referendum Campaign Broadcasts specifically withdrawn in the event of one-sided designation.

3.19 This matter was discussed previously with the Scottish Government in the run-up to the 2014 election. In the event, there was designation on both sides, so the issue did not arise, but broadcasters are still concerned about the precedent.

3.20 BLG makes a range of arguments in support of their view that one-sided designation would not be viable, including that:

• Balancing a Referendum Campaign Broadcast with the broadcaster's own editorial output is 'fundamentally flawed as the two are not comparable'. Even if they were, this would 'still leave broadcasters vulnerable to complaints that coverage was not impartial, but more fundamentally would be an unacceptable interference with broadcasters' editorial control over their output and Article 10 rights on freedom of expression'

3.21 The Electoral Commission report following the 2014 referendum recommended in respect of future referendums 'we would not expect campaign broadcasts to be included in the package of benefits available in the event of one-sided designation'. This position was further elaborated in the Electoral Commission's briefing to the House of Lords at Third Reading of the European Union Referendum Bill (1 December 2015) where it was recommended that 'steps should be taken to reduce the potential advantages of the current PPERA designation model for a prospective lead campaigner to decide against applying for designation - for example if a campaigner sees a tactical advantage in not seeking designation to frustrate the other side's access to the additional campaigning benefits. Etc. Etc.' This amendment was accepted, and so in the event of one-sided designation in the 2016 EU referendum there would have been no Referendum Campaign Broadcasts for either side.