The Scottish referendum. Response to consultations

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1 The Scottish referendum Response to consultations March

2 Translations and other formats For information on obtaining this publication in another language or in a largeprint or Braille version please contact the Electoral Commission: Tel: We are an independent body set up by the UK Parliament. Our aim is integrity and public confidence in the democratic process. We regulate party and election finance and set standards for well-run elections. 2

3 Contents 1 The Scottish referendum summary of the Electoral Commission s response to consultations 4 2 Introduction about our response 10 3 The statutory basis for the referendum 14 4 The timing of the referendum 19 5 The referendum question 25 6 Management of the referendum 33 7 The role of the Electoral Commission in oversight of the referendum 37 8 The referendum franchise and conduct of the referendum 41 9 Information for voters at the referendum Spending controls and referendum campaign regulation 52 3

4 1 The Scottish referendum summary of the Electoral Commission s response to consultations 1.1 This is a single response from the Electoral Commission to the consultation papers on a Scottish referendum from the UK Government (Scotland s constitutional future) and the Scottish Government (Your Scotland, Your Referendum). 1.2 Our focus is on voters and on putting their interests first, and that underpins everything we do. The people of Scotland face an historic decision and the referendum must take place in a way that is transparent, open to scrutiny, gives voters and campaigners confidence and delivers a result accepted by all. We have made a number of recommendations about how both Governments proposals may be strengthened to achieve this, and a summary of our recommendations follows in this chapter. We will continue to provide advice and scrutiny to both Governments as they take this work forward. 1.3 The Commission s response focuses on how to deliver a referendum that is run in the interests of voters and identifies issues where both Governments will need to work together to ensure this happens. We welcome the constructive dialogue we have had with officials from both the UK Government Scotland Office and the Scottish Government, and look forward to continuing those discussions as the plans for the referendum progress. 1.4 Our objectives for referendums are: they should be well-run and produce results that are accepted there should be integrity and transparency of campaign funding and expenditure 1.5 These objectives are the basis for our established principles for well-run referendums 1, which informed our approach to the matters for which we were responsible in the 2011 Wales and UK referendums. In summary, these are that: 1 Key principles for referendums (February 2010) data/assets/pdf_file/0004/87412/referendum-principles- Paper FINAL.pdf 4

5 the referendum should be administered efficiently and produce results that are accepted there should be no barriers to voters taking part there should be no barriers to campaigners putting forward arguments for any of the possible outcomes. The Electoral Commission s views on the statutory basis for a referendum 1.6 We recognise that there are two possible mechanisms for legislating for the Scottish referendum: either through an Act of the UK Parliament; or through an Act of the Scottish Parliament. 1.7 Whichever legal mechanism is used, the referendum should have a clear and certain legal framework, with: clear roles and responsibilities for administering the referendum, communicated to those who will deliver them, and clear and fair rules governing campaign spending and fund-raising activity 1.8 The detailed rules for the delivery, conduct and regulation of the referendum need to be clear and in place at least 28 weeks in advance of polling day, to enable effective preparation for the poll by referendum campaigners and Counting Officers. 1.9 The Commission s role needs to be set out clearly in the legislation. If our role is to include assessing the intelligibility of the proposed question and we would welcome the opportunity to do so we should be given clear statutory authority to begin this process before the question is introduced to the relevant Parliament, so that the Commission s independent advice is available in time to inform Parliamentary scrutiny of the question Whichever legislative mechanism is used, the legislative provisions for the referendum should reflect those that were used for the two PPERA referendums in 2011, and incorporate the legislative changes we recommended following those referendums. The Electoral Commission s views on the timing of a referendum 1.11 It is for the Governments and Parliaments to propose and decide on when the referendum should be held. There are, however, some practical factors which should be taken into consideration in making that decision, particularly in terms of whether holding the referendum on a particular proposed date could create barriers to participation by voters and campaigners Sufficient time is needed in advance of the referendum for the key preparation activities to take place, including time for campaigners to put their 5

6 arguments across to voters, and for effective planning and preparation by those administering the poll. The timetable for legislation for the referendum should therefore aim to ensure that, no later than 28 weeks in advance of the proposed polling day: there is final confirmation that a referendum will take place, either by Royal Assent to a referendum Act or the making of an Order providing for a referendum, and any associated secondary legislation is published for Parliamentary approval (see paragraphs for a detailed breakdown of this timescale) Any consideration of an autumn poll should take into account the (relatively short) number of daylight hours at that time of year and assess how, and to what extent this may affect participation by voters and campaigners In terms of the administration of the poll, 2014 is currently proposed to be a time of significant change in terms of electoral registration, with the proposed implementation of individual electoral registration from July This could lead to potential confusion for electors as well as posing practical challenges for Electoral Registration Officers in Scotland to ensure that the registers used both for voting and campaigning at the referendum are accurate and complete We would expect to work together with the UK and Scottish Governments to identify how best to manage these risks and ensure that the referendum is well-run, and that voters and campaigners are able to fully participate in it. The Electoral Commission s views on the referendum question 1.16 It is essential that voters can easily understand and answer the referendum question, so that the referendum produces a result that is accepted and commands confidence Whatever the legislative process for determining the referendum question, there will be an important role for the provision of evidence-based, independent advice to the relevant Parliament about the intelligibility of the question that is finally presented for approval The Electoral Commission has knowledge, expertise and recent experience of assessing the intelligibility of referendum questions and giving advice to parliaments and assemblies, and we would welcome the opportunity to undertake this role for the proposed Scottish referendum If the referendum is to be legislated for by an Act of the Scottish Parliament, and the Commission is to have a role in assessing the intelligibility of the proposed question, there should be clear statutory authority in place to enable the Commission to publish its views on the intelligibility of a question formally proposed by Government, once the referendum Bill has been 6

7 introduced. It would not be appropriate for the Commission to comment on any proposed question before it had concluded any formal assessment and reported to Parliament. Similarly, we have no pre-determined view on the merits of asking one question at a referendum, or more than one question There needs to be sufficient time allowed for an assessment process that includes, as a minimum: carrying out qualitative research with voters taking advice from accessibility and plain language specialists asking prospective campaigners, politicians and other interested people for their views on the wording, in the context of our guidelines 1.21 The timetable also needs to allow for the outcome of the question assessment to be considered at the most appropriate time in the Parliamentary process. There are differences in Parliamentary process for an Act of the UK Parliament and an Act of the Scottish Parliament. If the referendum is legislated for by the latter, any statutory provision for the Commission to give its views on the intelligibility of the proposed question should also allow us to begin our assessment of the question before it is presented to Parliament, so that the Commission s report is available to inform Parliamentary scrutiny of the proposed question once the Bill has been introduced to Parliament. The Electoral Commission s views on the management of the referendum 1.22 We support the appointment of the Convener of the Electoral Management Board (EMB), currently Mary Pitcaithly OBE 2, as Chief Counting Officer (CCO) for the proposed referendum, whether designated under existing PPERA provisions, or by alternative provision. In the latter case, we recommend that the appointment of the CCO is approved by the Scottish Parliament, rather than by Scottish Ministers, to reduce the risk of compromising the perception of the CCO s capacity to deliver her statutory responsibilities independently. The Electoral Commission s views on our role in oversight of the referendum 1.23 We recommend that the CCO (i.e. the Convener of the EMB) should be responsible for providing guidance to Counting Officers in support of her directions, and that the Electoral Commission should support the CCO in this process, rather than provide parallel guidance. The CCO should also monitor and manage the performance of Counting Officers in planning, preparation and delivery of the referendum. 2 Mary Pitcaithly OBE is the Chief Executive of Falkirk Council. 7

8 1.24 We recognise that this would be a significant exercise, which would need to be supported by appropriate resource and expertise. We recommend that the Commission is given a clear specific power in the enabling legislation for this referendum to allow us to provide support of this nature to the CCO and the EMB. The Commission would welcome being given a statutory responsibility to publish a report on the referendum for the Scottish Parliament, as we are required to do for local government elections in Scotland. The Electoral Commission s views on the referendum franchise and the conduct of the referendum The franchise 1.25 The Scottish Government should set out more clearly its intention regarding 16- and 17-year olds being able to vote at the referendum. We have identified some apparent discrepancies between the Scottish Government s stated intention of extending the franchise to those aged 16 and 17, and what is currently permissible within UK electoral legislation In addition, there would be some practical challenges to ensuring 16- and 17-year olds are able to register to vote at the referendum, and these would need to be carefully managed to ensure that this group who are not able to vote at the majority of elections in Scotland are registered to vote, in order that they have a fair and equal opportunity to participate. Announcing the result 1.27 We recommend that local count totals are announced once they have been certified by the CCO in the interests of a transparent process, and confidence in the referendum result. The Electoral Commission s views on information for voters at the referendum 1.28 Clear public information is essential in ensuring that voters are informed about how to participate. We would welcome a statutory responsibility for promoting public awareness of the referendum, its subject matter (as distinct from the campaign arguments), and how to vote in it The referendum legislation should give the CCO and Counting Officers an express power to promote participation in the referendum The legislation should also set out how broadcasts are to be allocated in relation to designated campaigners To ensure confidence in the referendum process we do not believe either the UK or Scottish Governments should run a public awareness campaign about the referendum. This is the approach that was adopted at the 2011 referendums and that we have recommended should continue to be followed at all elections. 8

9 The Electoral Commission s views on spending controls and referendum campaign regulation 1.32 We would be happy to take on the role of regulating campaign spending and funding at the Scottish referendum In order to carry out this role successfully we would need appropriate statutory powers. We would also want to help ensure that the rules on campaigning are workable and effective The UK Government has proposed that a referendum Bill in the UK Parliament would adopt the standard UK rules on campaign regulation. The Scottish Government has set out detailed proposals for the regulation of campaigning. We have commented on the proposals of both Governments, drawing on our established principles for well-run referendums and, where appropriate, on our past experience of regulating referendum campaigning. We have highlighted in particular the need for the rules on designating lead campaigners to be clear and unambiguous, particularly if there were to be more than two possible outcomes. 9

10 2 Introduction 2.1 On 10 January 2012 the Scotland Office of the UK Government published a consultation entitled Scotland s constitutional future. On 25 January 2012 the Scottish Government published its consultation paper Your Scotland, Your Referendum. 2.2 This response sets out the Electoral Commission s position on the questions and issues raised in both consultations. We have sought clarification from officials in both Governments where we have identified queries about specific aspects of the proposals set out in the consultation papers, and we are grateful for the information that they have provided. We welcome the constructive dialogue we have had with officials from both the UK Government Scotland Office and the Scottish Government, and look forward to continuing those discussions and providing advice and scrutiny to both Governments as they take this work forward. The Electoral Commission s role and responsibilities 2.3 The Electoral Commission is an independent body established by the Political Parties, Elections and Referendums Act 2000 (PPERA). We regulate party and election finance and set standards for well-run elections and electoral registration in the UK. We have statutory responsibilities in relation to elections, and referendums held under the provisions of PPERA. These responsibilities include: promoting public awareness of elections and how to participate in them; giving guidance on, and setting standards for electoral registration and electoral administration; reporting on the administration of elections and referendums; giving guidance to candidates, agents, political parties and referendum campaigners; and regulating and reporting on election and referendum funding and spending. 2.4 Since 2000 we have had statutory responsibilities in relation to Scottish Parliament elections, as well as elections to the UK Parliament and the European Parliament in Scotland. These include setting standards for the running of the elections and monitoring Returning Officers performance against these standards since 2008; running a public awareness campaign so that voters know how to participate in the elections; operating an observer scheme 3 3 The observer scheme was introduced by the Electoral Administration Act 2006, which amended PPERA. It originally applied in Scotland to elections to the UK Parliament, European 10

11 and reporting publicly on how well the elections were run. The Local Electoral Administration (Scotland) Act 2011 extended our statutory remit to cover local government elections in Scotland in the same way, and requires us to report to the Scottish Parliament on how the local government elections were run. 2.5 Since the Commission was established, we have supported, regulated and reported on three Scottish Parliament elections, and were commissioned and funded by the Scottish Government under Memorandums of Understanding to support and report on the local government elections in Scotland in 2003 and Since the Scottish Parliament and local government elections in 2007 we have worked with the Scottish Government, political parties and electoral administrators in Scotland to improve the administration of elections and provide a better service for voters. Central to this has been the work to establish the Electoral Management Board for Scotland, led by an Elections Convener, which in 2011 was given a statutory role by the Scottish Parliament in relation to local government elections. 2.6 We have also overseen three referendums held under the framework of rules set out in PPERA, two of which were held in short succession in At both of the referendums held in 2011, the Chair of the Commission was the Chief Counting Officer, with overall responsibility for the conduct of the polls and the accuracy of the results. The Electoral Commission had separate statutory responsibilities at those referendums in relation to public awareness, question assessment, the regulation of campaign funding and spending, and reporting. 2.7 We have published comprehensive reports on the management and delivery of these three referendums, including identifying lessons and recommendations for future referendums. Each of these reports is available on our website. 5 About our response 2.8 The consultation papers seek views on a number of specific questions that are matters for the UK and Scottish Governments and Parliaments to decide, as Parliament and Scottish Parliament, as well as PPERA referendums. The Local Electoral Administration (Scotland) Act 2011 extended the scheme to cover local elections in Scotland. 4 In 2004 the Chair of the Commission appointed a Returning Officer as the Chief Counting Officer for a referendum on a proposed regional assembly for the North East of England, while the Commission carried out public awareness and campaign regulation functions. 5 The 2004 North East regional assembly and local government referendums (November 2005) data/assets/pdf_file/0008/76994/nereffullreport.pdf; Report on the referendum on the law-making powers of the National Assembly for Wales (June 2011) data/assets/pdf_file/0019/118603/wales-ref-report-finalweb-mail.pdf; Referendum on the voting system for UK parliamentary elections - Report on the May 2011 referendum (October 2011) data/assets/pdf_file/0019/141328/final-pvs-report.pdf 11

12 appropriate, and on which the Commission does not propose to express a view. Where this is the case for instance, in relation to the substance of the referendum question, or the franchise we say so in our response. Conversely, there are issues contained in the consultation paper of a technical nature on which we would wish to comment but no direct question is asked of respondents. In these instances we have made comments. 2.9 Our focus is on voters and on putting their interests first, and that underpins everything we do. Referendums must take place in a way that is transparent, open to scrutiny, gives voters and campaigners confidence and delivers a result accepted by all. Our objectives for referendums are: they should be well-run and produce results that are accepted there should be integrity and transparency of campaign funding and expenditure 2.10 These objectives are the basis for our established principles for well-run referendums, which we published in , and which informed our approach to the matters for which we were responsible in the 2011 Wales and UK referendums. Our principles for voters, campaigners and administrators are set out in full in that document, and our response to the proposals in both referendum consultations is guided by those principles. In summary, they are that: the referendum should be administered efficiently and produce results that are accepted there should be no barriers to voters taking part there should be no barriers to campaigners putting forward arguments for any of the possible outcomes 2.11 Our reports on the Wales and UK-wide referendums in 2011 describe the experiences of all those who participated in those referendums, and set out a number of recommendations for the future delivery of referendums, including on referendum legislation; voter information; improving the experience of voters; regulating campaigning; and the delivery of future referendums. These recommendations related to future referendums held under PPERA, but clearly have wider application and relevance to other referendums of a similar nature and scale, as the proposed referendum in Scotland would be We have drawn on our practical experience in responding to the two consultations, particularly our recent experience of the two PPERA referendums in 2011, as well as the experience of others involved in those referendums. This 6 Key principles for referendums (February 2010) data/assets/pdf_file/0004/87412/referendum-principles- Paper FINAL.pdf 12

13 response provides information about the lessons we have learned from these experiences, in the interests of ensuring that the proposed referendum is delivered in the best possible way for voters in Scotland. The format of our response 2.13 We have chosen to publish a single response to both the UK Government and Scottish Government consultation papers. Our response is based on our principles for well-run referendums, which apply equally to the proposals in both consultation papers, irrespective of differences in approach, or technical detail or process. A single response means that our views on all of the proposals and questions asked by both Governments are clearly set out in one place, at the same time, for ease of reference and understanding by all concerned The Scottish Government s consultation paper includes a draft referendum Bill which sets out more detailed proposals for the conduct and regulation of the referendum. Where appropriate we have commented in detail on the specific proposals. If any draft legislation were subsequently to be published by the UK Government, we would comment on it in the same level of detail. 13

14 3 The statutory basis for the referendum 3.1 Both the UK and Scottish Government consultation papers propose possible legislative mechanisms to enable a referendum to take place and to make provision for the detailed rules for the conduct and regulation of the referendum. Consultation questions on the statutory basis for a referendum The UK Government consultation paper sets out proposals for using an Order made under section 30 of the Scotland Act 1998 to enable the Scottish Parliament to establish the legal framework for a referendum. It also sets out two alternative options: a referendum Bill introduced to the UK Parliament; or amending the Scotland Bill currently before the UK Parliament to either give powers to the Scottish Parliament to legislate for a referendum or to provide for a referendum directly. It asks four questions: 1. What are your views on using the order making power provided in the Scotland Act 1998 to allow the Scottish Parliament to legislate for a legal referendum in an Act of the Scottish Parliament? 2. What are your views on the UK Parliament legislating to deliver a referendum on independence? 3. What are your views on whether the Scotland Bill should be used either to: i) give the Scottish Parliament the power to legislate for a referendum; or ii) directly deliver a referendum? 9. What are your views on the draft section 30 Order? The Scottish Government consultation paper includes a draft Referendum (Scotland) Bill and notes that the Scottish Government is ready to work with the UK Government to clarify the competence of the Scottish Parliament to legislate for a referendum. The current legislative framework 3.2 PPERA sets out a legal framework for referendums held under UK Acts of Parliament across the UK as a whole or in any part of the UK. Part VII of PPERA provides for: 14

15 the appointment of Counting Officers and a Chief Counting Officer general rules on how referendums should be run rules on promotional material and campaigning in referendums spending restrictions for registered campaigners 3.3 Further legislation is required for individual referendums to take place under the PPERA framework, covering specific details such as the date of the referendum and the referendum question. 3.4 In order for a referendum to be well-run, the legal framework needs to enable: a well-planned poll which is consistently and professionally delivered a clear process for the designation of campaigners and clear rules for all campaigners transparency in relation to campaign expenditure and funding comprehensive public awareness activity so that voters know how to participate and what they are being asked to vote on careful and independent assessment of the intelligibility of the referendum question 3.5 The draft section 30 Order contained in the UK Government s consultation paper would require the referendum to be held: in accordance with Part [VII] of the Political Parties, Elections and Referendums Act 2000 (referendums) as if the referendum were within section 101(2) of that Act, subject to any modifications specified in subordinate legislation. 3.6 The Scottish Government consultation and draft Bill propose to adopt the application of a number of PPERA provisions, primarily relating to the regulation of campaign funding and spending. It does not propose to adopt Part VII of PPERA directly, which provides for the conduct of referendums, although many such provisions are replicated in the draft Bill. Legislation for the Scottish referendum 3.7 Broadly, the overarching legislative framework set out in PPERA worked well in terms of delivery and regulation of the two referendums held in 2011, in conjunction with the provisions in the enabling primary legislation that applied to each of the referendums. When we reported on our and others experience of the application of that legislation, we recommended that some changes should 15

16 be made to PPERA. These are detailed in full in our October 2011 statutory referendum report which is available on our website If PPERA is applied directly to the proposed Scottish referendum, we would want these changes to be applied also. If the PPERA framework is not applied directly, the relevant legislation would need to provide an appropriate framework for all aspects of the conduct and regulation of the referendum, but would also need to take account of our 2011 recommendations. The Scottish Government s consultation paper acknowledges the recommendations in our report, including those that relate to the referendum framework in PPERA, and we welcome its commitment to consider these recommendations with the Commission as part of the process of developing the legislation for the proposed referendum. 3.9 The legislation would also need to make clear and specific provision for any role the Commission is to have at the referendum; specify how the Commission was to be funded for that role; and make clear how the Commission would report on the discharge of its functions. Consideration should also be given to whether there are any statutory roles or responsibilities that may need to commence before any enabling legislation for the referendum is passed and how this might be achieved in practice. Specifically, as we set out in Chapter 4, if the Commission is to assess the question it should be given clear statutory authority to begin assessing the intelligibility of a proposed referendum question before the relevant legislation containing the question has been introduced in either the UK or Scottish Parliament. The UK Government s draft section 30 Order 3.10 Article 3 of the draft section 30 Order in the UK Government s consultation paper is intended, among other things, to make provision for the referendum to be run in accordance with part VII of PPERA and to provide for the Electoral Commission to carry out functions at the Scottish referendum similar to those which it undertook at the referendums in The consultation paper also notes that, in addition to the order, supplementary provision would be required to fully apply part VII of PPERA to the referendum The draft Order also refers to the application of PPERA subject to any modifications specified in subordinate legislation. The consultation paper does not make clear the purpose of this particular provision, its intended nature and scope, or how it would be applied in practice. To enable us to respond to the consultation, we sought some initial clarification on this point from the UK Government Scotland Office. 7 Referendum on the voting system for UK parliamentary elections - Report on the May 2011 referendum (October 2011) data/assets/pdf_file/0019/141328/final-pvs-report.pdf 16

17 3.12 We understand from this that the reference to a potential modification of PPERA was included to highlight that there may be a need to modify PPERA through an order, to make it suitable for the Scottish referendum. The draft provision does not specify whether the UK or Scottish Parliament would be responsible for making modifications. The Scotland Office have told us that views on this matter would be considered as part of the consultation process The Scotland Act 1998, to which insertions would be made by the draft section 30 Order, contains a definition of modification which includes amendments or repeals. So, potentially, any power inserted into that Act to modify PPERA could be wide-ranging. We recommend that, should the draft Order be taken forward, the points of ambiguity we have identified here are clarified so that it is absolutely clear which legislature would have powers to make an order amending PPERA for the purposes of a referendum in Scotland. We also recommend that the section 30 Order should contain a requirement for the Electoral Commission to be consulted on the contents of any amending Order. The Scottish Government s Draft Referendum (Scotland) Bill 3.14 In our 2010 response to the Scottish Government consultation on a Draft Referendum (Scotland) Bill, we identified some discrepancies between the generic PPERA rules and the provisions in the draft Bill (for instance in relation to the formal assessment of the referendum question(s) and the regulation of campaign spending). We note that some of these changes, and also some of our subsequent recommendations relating to electoral events and to referendums in particular, have been reflected in the draft Bill which has been published alongside the current Scottish Government consultation. We address outstanding issues in the relevant chapters of this response, in particular in Chapter 10: Spending controls and referendum campaign regulation. The detailed referendum rules 3.15 The more detailed provisions in the respective enabling legislation and related secondary legislation for the 2011 PPERA referendums provide a good basis for future referendums, whether or not they are held under the same framework, and we would expect the legislation for the Scotland referendum to make equivalent provision. We also recommend that there should be a requirement for the Electoral Commission to be consulted on the contents of any detailed rules contained in secondary legislation before they are laid before the relevant Parliament for approval, as is the case for the majority of electoral legislation. The Electoral Commission s views on the statutory basis for a referendum We recognise that there are two possible mechanisms for legislating for the Scottish referendum: either through an Act of the UK Parliament; or through an Act of the Scottish Parliament. 17

18 Whichever legal mechanism is used, the referendum should have a clear and certain legal framework, with: clear roles and responsibilities for administering the referendum, communicated to those who will deliver them, and clear and fair rules governing campaign spending and fund-raising activity The detailed rules for the delivery, conduct and regulation of the referendum need to be clear and in place at least 28 weeks in advance of polling day, to enable effective preparation for the poll by referendum campaigners and Counting Officers. The Commission s role needs to be set out clearly in the legislation. If our role is to include assessing the intelligibility of the proposed question and we would welcome the opportunity to do so we should be given clear statutory authority to begin this process before the question is introduced to the relevant Parliament, so that the Commission s independent advice is available in time to inform Parliamentary scrutiny of the question. Whichever legislative mechanism is used, the legislative provisions for the referendum should reflect those that were used for the two PPERA referendums in 2011, and incorporate the legislative changes we recommended following those referendums. 18

19 4 The timing of the referendum 4.1 The UK Government has not proposed a specific date or timescale in which the referendum should take place, other than to say that it should be held as soon as possible. The Scottish Government has proposed a referendum in autumn Consultation questions on the timing of a referendum The Scottish Government consultation paper proposes that a referendum will be held in the autumn of It asks: QUESTION 2: What are your views on the proposed timetable and voting arrangements? The UK Government consultation paper does not propose a specific date for a referendum. It asks: 7. What are your views on the timing of a referendum? 4.2 It is for the respective Governments and Parliaments to agree how the proposed date is to be determined and what that date is, and for the relevant Parliament(s) to ultimately decide what the date should be. There are, however, some practical factors which should be taken into account when considering the timing of a proposed referendum. Any decision on the timing of the poll should take into account: Any practical implications that would apply to a poll held on the proposed date, and whether the proposed timing could create barriers to participation by voters and campaigners. The time needed for the development, scrutiny and commencement of the legislative framework for the referendum, including time for assessment of the intelligibility of the referendum question wording and any secondary legislation required to establish detailed conduct rules or the funding framework for Counting Officers. The time needed for planning and preparation for the delivery of the poll and campaigns. The timing of referendum legislation 4.3 The UK Government s consultation paper says 19

20 Experience from the referendum on the voting system for the House of Commons has shown that a referendum can be successfully delivered within a year, from the introduction of legislation, through to the holding of the poll. 4.4 In our October 2011 report on that referendum we provided evidence of the difficulties experienced as a result of the legislative process and timetable, and made clear that we do not believe that the legislative timetable for that referendum should be seen as an example of the shortest period of time required to legislate for any future referendum. Our view has not changed and we do not consider this would be an appropriate timetable to follow. 4.5 The Scottish Government has published a timetable in its consultation paper which it states would: meet the Gould recommendation that electoral contests should not take place within six months of the regulations for the contest coming into force.to ensure that those charged with organising and managing the poll had sufficient time to do so. 4.6 The importance of ensuring legislation is clear and in place in good time before polling day was reinforced by the experience of legislating for the May 2011 referendum and the uncertainty caused by late legislative confirmation, which in turn posed risks to the successful delivery of the poll. 4.7 In planning for a referendum to take place, the relevant Government with responsibility for the legislative framework must manage the development and introduction of enabling legislation to ensure that the relevant Parliament has sufficient time to properly scrutinise proposals (which includes the time for a section 30 Order to be passed, if that is the legislative route that is taken). 4.8 There must also be sufficient time for Parliament to consider independent evidence and advice about the intelligibility of the proposed referendum question at an appropriate point during scrutiny of the relevant legislation. Our experience suggests that it is possible to carry out a thorough, evidenced assessment, analyse the findings and report on the intelligibility of a proposed referendum question in 12 weeks (although it is possible that a more complex question might require longer than 12 weeks to properly assess). More time would also be required in the event that further testing on a revised question is needed in order for full advice to be given to Parliament. We have provided a more detailed explanation of the question assessment approach previously adopted by the Commission in Chapter 5 of this response. 4.9 Any plan should also take into account the need for legislation including any secondary legislation required to establish the funding limits for Counting Officers, for example to be in place in good time for campaigners, the Chief Counting Officer, Counting Officers, the Electoral Management Board for Scotland and the Electoral Commission to prepare for their respective roles. This includes the time required, once the detailed rules have been confirmed, for 20

21 the Chief Counting Officer to develop and disseminate any directions and guidance to Counting Officers, and for the Commission to publish guidance for campaigners We set out below our view of the key timescales and milestones for legislation for the Scottish referendum. The timetable for referendum legislation and preparation 4.11 In our report on the UK-wide referendum in May 2011 we recommended that any plans for a future referendum should aim to ensure that there is confirmation that a referendum will take place, either by Royal Assent to a referendum Act or the making of an Order providing for a referendum, at least 28 weeks in advance of the proposed polling day Based on the experience and evidence from the March and May 2011 polls, we recommend that 28 weeks (i.e. just over six months) is the minimum period which would be required to allow sufficient time for these key preparation activities to take place in advance of a referendum: A minimum period of 12 weeks between finalisation of the campaign rules (i.e. the relevant legislation being passed) and the start of the regulated referendum period to allow sufficient time for the development and distribution of guidance and supporting materials for campaigners. We note that the Scottish Government s proposed timetable reflects this recommendation by proposing that the enabling legislation (which would specify the referendum period) would be in place approximately one year in advance of polling day. A minimum 16-week regulated referendum period. Confirmation of the key directions from the CCO to COs at least six months before polling day to inform high level planning for the management of the poll. Development of any guidance and supporting materials for Counting Officers so that they are in place at least four months before polling day to enable detailed planning for delivery of the administration of the poll Any secondary legislation which might be required for the referendum (such as that specifying any detailed conduct rules and the funding limits for Counting Officers) should also be published and laid before the relevant Parliament for approval at least 28 weeks before polling day, so that the detailed rules are available in sufficient time to enable effective planning and preparation by the Chief Counting Officer and Counting Officers In our report on the May 2011 referendum we also made recommendations in relation to the length of the formal referendum period, during which lead campaigners are designated, and campaign funding and spending is regulated. We recommended to the UK Government that the current ten-week minimum period set out in PPERA should be amended to a minimum 21

22 of 16 weeks, to allow more time after the designation period for lead campaign organisations to put their arguments to voters Following these consultations, if legislation is brought forward to enable a referendum to be held, we will consider that proposal against this timetable, and will advise the relevant Parliament at the earliest opportunity if we think there is any risk that the timetable is insufficient to allow both appropriate time for scrutiny and sufficient time for delivery of key referendum activities for which the Commission is responsible. We would also advise of any risks we identified to the successful delivery of the poll, and to effective participation by voters and campaigners In scrutinising legislation for any future referendum, we also think it would be helpful for the relevant Parliament to consider any assessment and recommendations made by whoever is appointed as the Chief Counting Officer about the time available for preparation and delivery of the administration of the referendum poll. The timing of the poll 4.17 The Scottish Government s consultation paper sets out an explanation of the reasons for its preferred timetable for the referendum, including the date of the referendum poll in autumn We have assumed that autumn would include, at most, the period from September to November. We have identified some practical considerations which should be taken into account in deciding on the date of the poll and if it is held in autumn 2014 in subsequent planning and preparation for delivering the referendum. The implementation of individual electoral registration 4.18 In June 2011 the UK Government published a White Paper and draft legislation on its proposals for implementing individual electoral registration (IER) in Great Britain. Under the Government s proposals, there would be no canvass of households in autumn 2014, but Electoral Registration Officers (EROs) would be required to contact all registered electors from July 2014 to ask them to provide specified information including their date of birth and National Insurance number In its recent response to pre-legislative scrutiny and public consultation on its proposals for implementing IER, the UK Government has indicated that it intends to move the autumn 2013 canvass of households to early This 8 Cabinet Office, Government Response to pre-legislative scrutiny and public consultation on Individual Electoral Registration and amendments to Electoral Administration law Cm 8245 (February 2012) 22

23 would mean a reduction in the length of time between publication of a revised register following the canvass and polling day for an autumn 2014 referendum, and would reduce the degree to which the completeness and accuracy of the electoral registers would have declined as a result of population movement The UK Government s current proposals envisage that from July 2014 all EROs in Great Britain would begin writing to registered electors to request their personal identifiers. This process is expected to continue through the autumn until the publication of a revised register of electors in December There are likely to be considerable practical challenges for EROs in Scotland in effectively managing this important process at the same time as processing new registration applications during the lead-up to a referendum. There are also likely to be implications for referendum campaigners who will need to use accurate and complete electoral registers to campaign The Scottish and UK Governments should consult and work together with EROs in Scotland in order to address any practical challenges to the accuracy and completeness of the electoral registers used for a referendum poll held during autumn We would also expect to work together with the Scottish and UK Governments to identify how best to minimise the risk of any confusion for electors which could be caused by overlapping public awareness messages during this period, and any complications for campaigners in using registers during this period. Daylight hours 4.22 We have previously highlighted the reduced daylight hours for an autumn poll compared with a May polling day in response to the UK Government s proposal to schedule the first elections for Police and Crime Commissioners in England and Wales for 15 November The Scottish Government should ensure that it has fully considered the implications for voters and campaigners of whichever date it proposes for the referendum poll. The Electoral Commission s views on the timing of a referendum It is for the respective Governments and Parliaments to propose and decide on when the referendum should be held. There are, however, some practical factors which should be taken into consideration in making that decision, particularly in terms of whether holding the referendum on a particular proposed date could create barriers to participation by voters and campaigners. Sufficient time is needed in advance of the referendum for the key preparation activities to take place, including time for campaigners to put their arguments across to voters, and for effective planning and preparation by those administering the poll. The timetable for legislation for the referendum should therefore aim to ensure that, no later than 28 weeks in advance of the proposed polling day: 23

24 there is final confirmation that a referendum will take place, either by Royal Assent to a referendum Act or the making of an Order providing for a referendum, and any associated secondary legislation is published for Parliamentary approval (see paragraphs for a detailed breakdown of this timescale). Any consideration of an autumn poll should take into account the (relatively short) number of daylight hours at that time of year and assess how, and to what extent this may affect participation by voters and campaigners. In terms of the administration of the poll, 2014 is currently proposed to be a time of significant change in terms of electoral registration, with the proposed implementation of individual registration from July This could lead to potential confusion for electors as well as posing practical challenges for Electoral Registration Officers in Scotland to ensure that the registers used both for voting and campaigning at the referendum are accurate and complete. We would expect to work together with the Scottish and UK Governments to identify how best to manage these risks and ensure that the referendum is wellrun, and that voters and campaigners are able to fully participate in it. 24

25 5 The referendum question 5.1 The UK Government s consultation paper proposes that a single question is asked at the referendum. It does not propose a specific referendum question, but the draft section 30 Order included in the consultation paper requires that There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses. The Scottish Government s consultation contains proposed wording for a single referendum question but also seeks views on the possibility of including a second question. Consultation questions on the referendum question The UK Government consultation paper proposes that there should be a single, straightforward question, which would be specified in legislation passed by the Scottish Parliament in accordance with an order under section 30 of the Scotland Act The consultation paper does not propose a specific referendum question, but the draft section 30 order requires that There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses. The consultation paper asks: 8. What are your views on the question or questions to be asked in a referendum? The Scottish Government consultation paper sets out a proposed referendum question and ballot paper which would be included in a referendum Bill introduced to the Scottish Parliament. The proposed question is: Do you agree that Scotland should be an independent country? The consultation paper asks: QUESTION 1: What are your views on the referendum question and the design of the ballot paper? and QUESTION 3: What are your views on the inclusion of a second question in the referendum and the voting system that could be used? 5.2 At any referendum it is essential that voters can easily understand and answer the question and any statement which precedes it on the ballot paper, so that voters and campaigners have confidence in the referendum, and it delivers a result accepted by all. The intelligibility of the referendum question and the design of the ballot paper are fundamental to voters ease of understanding and participation in the referendum. 5.3 Where we have a responsibility to do so, we consider the intelligibility of any proposed question or set of questions on a case-by-case basis. Decisions about whether or not a particular question is intelligible should be based on evidence, including research with voters. It would not be appropriate for us to comment on any proposed wording of a referendum question in the absence of 25

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