Consultation on a draft Referendum Bill

3 Campaign Rules

Chapter Summary

• The draft bill applying the 2013 Act includes rules to ensure that the referendum campaigns are run in a fair and transparent manner.
• The Electoral Commission will have responsibility for policing these rules and for reporting to the Scottish Parliament. Any individual or organisation wishing to spend more than £10,000 on campaigning must register with the Commission in order to be a "permitted participant".
• There will be no public funding for campaign organisations.

The need for campaign rules

3.1 The accepted approach in the UK for running a referendum has its origins in the Fifth Report of the Committee on Standards in Public Life. That led to the Political Parties, Elections and Referendums Act 2000 ( PPERA) that governs referendums held under legislation made by the Westminster Parliament.

3.2 It is essential that there are rules in place to ensure that the referendum campaigns are run in a fair and open manner. The proposals in the draft bill are broadly the same as those used in 2014, which in turn mirrored those prescribed in PPERA. They place some restrictions on expenditure and donations by those campaigning at the referendum. 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.

3.3 The day of the referendum poll would be preceded by a "referendum period" (at this stage proposed to be 16 weeks) during which the rules on campaign conduct and spending would apply. For the 2014 Scottish independence referendum, the period was 16 weeks. For the 2016 EU referendum and the 2011 referendum on the Alternative Vote it was 10 weeks.

3.4 It is customary for there to be a period before elections and referendums in the UK, during which Ministers and other public bodies refrain from publishing material that would have a bearing on the election. The draft bill specifies a 28-day referendum restricted period that would apply to the Scottish Government and public bodies. This is in line with the 2013 Act and PPERA. In 2014, in line with the Edinburgh Agreement, the UK Government agreed to act according to the same PPERA-based rules during the 28-day period.

3.5 It is also essential that the campaign rules are followed and policed. The Scottish Government proposes that the Electoral Commission should take on this role as explained in the previous chapter and, in doing so, report to the Scottish Parliament as it does for its activities in monitoring local elections in Scotland.

Participants in the referendum campaign

3.6 In line with the approach taken in Part 7 of PPERA, the draft bill provides that any individual or organisation (including a political party) who wishes to spend more than £10,000 on campaigning would have to notify the Commission that they wish to be a "permitted participant". The purpose of having declared permitted participants is to help to ensure an open process where those who wish to campaign for a particular outcome must register that intention.

3.7 The draft bill provides that a permitted participant may apply to the Electoral Commission to be the principal campaigner representing one of the outcomes of the referendum. These permitted participants are called "designated organisations". A designated organisation would have a higher campaign spending limit than other permitted participants. The Scottish Government would seek agreement with the UK Government that each designated organisation would 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. The Scottish Government would also seek agreement with the UK Government on campaign broadcasts. Designated organisations would also be entitled to use meeting rooms in schools or other public buildings for public campaign meetings during the 4-week period before the referendum is held.

No public funding

3.8 It is not proposed that there should be any grants of public money to those who wish to campaign.

Proposed technical changes from the 2014 referendum procedures

Permissible Participants

3.9 The list of permissible donors and permitted participants (Schedule 4 of the 2013 Act, paragraphs 1, 2 and 40) has been updated to reflect changes to the campaigning rules under the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014. These changes also take account of recommendation 7 of the Electoral Commission's report on the 2014 referendum.

3.10 In schedule 4 of the 2013 Act, paragraph 3 has been updated to require that the person who is to be appointed as the responsible person for permitted participant bodies should sign the application for declaration as a permitted participant. This is to ensure that the person is aware that they are being appointed and the responsibilities they will take on. This change reflects part of recommendation 8 of the Electoral Commission's report on the 2014 referendum.

3.11 In schedule 4 of the 2013 Act, a new paragraph 3A has also been added to allow the Electoral Commission to reject a declaration if the campaigner proposes to register a name which is obscene or offensive or includes words the publication of which would be likely to amount to the commission of an offence. This change reflects the legislation at recent referendums.

3.12 In schedule 4 of the 2013 Act, paragraph 4 has been updated to allow a political party's campaigns officer to take on the treasurer's role of responsible person. This change reflects part of recommendation 8 of the Electoral Commission's report on the 2014 referendum.

Question 3: What are your views on the proposed changes to rules on permissible participants?

Spending limits for participants in the referendum campaign

3.13 The draft bill proposes broadly the same approach to spending limits as was used in 2014. These limits were developed with reference to the levels of spending used for the Scottish Parliament elections, and worked well in practice.

3.14 Breach of these limits would be treated as an offence. Sanctions for non-compliance are set out principally in schedules 4 to 6 of the 2013 Act as applied by the draft bill.

Referendum expenses

3.15 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 those of:

• campaign broadcasts
• advertising
• unsolicited material addressed to voters
• any material that provides information about the referendum or 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
• rallies and other forms of public meetings.

3.16 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 2013 Act as applied by the draft bill and must be declared to the Commission along with the other expenses.

3.17 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 to ensure that each participant has appropriate procedures in place to authorise and account for its expenses.

Question 4: What are your views on the proposed campaign rules and rules on spending?

Proposed technical changes from the 2014 referendum procedures

Calculation of Permitted Participants' Expenses

3.18 Schedule 4 of the 2013 Act, paragraph 19 has been updated in line with recommendations from the Electoral Commission, made in the run up to the 2014 referendum. This change clarifies the way that the expenses limits are calculated for permitted participants who are also registered parties. Rather than rounding the constituency and regional percentages to one decimal place before adding together to calculate the relevant per cent, the constituency and regional percentages should be added together before rounding to two decimal places. This produces minor amendments to the spending limits.

Transactions Between Qualifying and Non-Qualifying Persons

3.19 In paragraphs 52, 55 and 57 of schedule 4 of the 2013 Act modifications have been made to reflect changes brought in for other referendums since the 2013 Act. These provide that it is an offence for a permitted participant knowingly to receive money under a loan or other regulated transaction from a person who has ceased to be a qualifying person, or to fail to repay money received under a loan or other regulated transaction from a person who has ceased to be a qualifying person after becoming aware the person has so ceased. These provisions also set out the information that must be recorded in relation to each recordable transaction to which a qualifying person and a non-qualifying person was a party.

Question 5: What are your views on the proposed changes to the rules on permissible participants' expenses and transactions between qualifying and non-qualifying persons?