The Scottish referendum - Response to consultations March 2012
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The Scottish
referendum
Response to consultations
March 2012
1Translations and other formats
For information on obtaining this publication in another language or in a large-
print or Braille version please contact the Electoral Commission:
Tel: 020 7271 0500
Email: publications@electoralcommission.org.uk
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.
2Contents
1 The Scottish referendum – summary of the Electoral 4
Commission’s response to consultations
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 37
referendum
8 The referendum franchise and conduct of the referendum 41
9 Information for voters at the referendum 49
10 Spending controls and referendum campaign regulation 52
31 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)
www.electoralcommission.org.uk/__data/assets/pdf_file/0004/87412/Referendum-Principles-
Paper-2010-06-02-FINAL.pdf
4• 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.
1.10 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.
1.12 Sufficient time is needed in advance of the referendum for the key
preparation activities to take place, including time for campaigners to put their
5arguments 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 4.11-4.16 for a detailed breakdown of this
timescale).
1.13 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.
1.14 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 2014. 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.
1.15 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.
1.17 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.
1.18 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.
1.19 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
6introduced. 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.
1.20 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.
71.24 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.
1.26 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.
1.29 The referendum legislation should give the CCO and Counting Officers an
express power to promote participation in the referendum.
1.30 The legislation should also set out how broadcasts are to be allocated in
relation to designated campaigners.
1.31 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.
8The 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.
1.33 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.
1.34 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.
92 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
10and 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
2007. 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 2011. 4 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)
www.electoralcommission.org.uk/__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)
www.electoralcommission.org.uk/__data/assets/pdf_file/0019/118603/Wales-ref-report-FINAL-
web-mail.pdf; Referendum on the voting system for UK parliamentary elections - Report on the
May 2011 referendum (October 2011)
www.electoralcommission.org.uk/__data/assets/pdf_file/0019/141328/Final-PVS-report.pdf
11appropriate, 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 2010 6, 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.
2.12 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)
www.electoralcommission.org.uk/__data/assets/pdf_file/0004/87412/Referendum-Principles-
Paper-2010-06-02-FINAL.pdf
12response 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.
2.14 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.
133 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• 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
15be made to PPERA. These are detailed in full in our October 2011 statutory
referendum report which is available on our website. 7
3.8 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 2011. 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.
3.11 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)
www.electoralcommission.org.uk/__data/assets/pdf_file/0019/141328/Final-PVS-report.pdf
163.12 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.
3.13 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.
17Whichever 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.
184 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 2014.
Consultation questions on the timing of a referendum
The Scottish Government consultation paper proposes that a referendum will be
held in the autumn of 2014. 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‘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
20the Chief Counting Officer to develop and disseminate any directions and
guidance to Counting Officers, and for the Commission to publish guidance for
campaigners.
4.10 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.
4.12 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.
4.13 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.
4.14 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
21of 16 weeks, to allow more time after the designation period for lead campaign
organisations to put their arguments to voters.
4.15 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.
4.16 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 2014. 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.
4.19 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 2014. 8 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)
22would 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.
4.20 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 2014. 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.
4.21 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 2014. 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 2012. 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• 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 4.11-4.16 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 2014. 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 well-
run, and that voters and campaigners are able to fully participate in it.
245 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 1998. 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
25such evidence, which we would expect to be gathered using a thorough
process such as that outlined below. We therefore set out in this chapter our in-
principle views on referendum questions, based on our published guidelines
and our experience of having assessed referendum questions in the past.
5.4 Similarly, the Commission has no pre-determined view on the merits of
asking one question at a referendum, or more than one question. Any reference
in this response to words such as ‘question’, ‘vote’ or ‘ballot paper’ (either
singular or plural) should not be construed as indicating the Commission’s
support or otherwise for either one question, or more than one question being
asked at the referendum. Where we have comments that are specific to the use
of either one, or more than one question, we make this explicit.
Referendum question development
5.5 There are several stages to the process of deciding the referendum
question. The terms of the referendum, and the substance of the question, are
rightly for the relevant Government or Governments to discuss and agree and
are not matters on which it would be appropriate for the Commission to take a
view. Once these matters have been decided, it is for the relevant Government
to develop a question and propose it to the relevant Parliament (or Parliaments),
which will decide the question to be put to voters at the referendum.
5.6 The approach to developing referendum questions in recent years across
the UK has involved asking or requiring the Electoral Commission to assess and
comment on the intelligibility of proposed wording, before Parliamentary
consideration and approval. We currently have a statutory responsibility to give
our views on the intelligibility of proposed questions for referendums held under
provisions in PPERA, and we are required to be consulted on draft questions for
referendums held under the Local Government Act 2000 and the Local
Government Finance Act 1992.
5.7 Our response to the Scottish referendum consultations relates only to the
process of ensuring – once the terms for the referendum and the substance of
the question have been agreed – that the wording of a referendum question is
clear, simple and neutral, so that voters can easily understand and answer it.
5.8 Nevertheless, our experience suggests that the substance of the question
and the possible outcomes following the referendum need to be clear before
any consultation on, or Parliamentary consideration of the wording of the
proposed question. We note the Scottish Government’s proposal to publish a
White Paper following Royal Assent of the referendum Bill and we comment on
this proposal and its link to the development of the question in Chapter 9:
Information for voters at the referendum.
26The Electoral Commission’s views on
referendum questions
Developing referendum question wording
5.9 Any referendum outcome needs to be an accurate reflection of what voters
want. It is therefore essential that any referendum question presents the options
to voters clearly, simply and neutrally, so that they can easily understand the
question – and its implications – and answer it. Voters should be able to mark
their ballot paper easily and confidently, knowing that their vote will be counted
in the way they intended.
5.10 We have published guidelines to help people draft intelligible referendum
questions, and which we have used in assessing the intelligibility of proposed
questions. 9 Irrespective of who is responsible for drafting or agreeing the
referendum question (or questions), we recommend following our guidelines,
which advise that referendum questions should:
• be easy to understand
• be to the point
• be unambiguous
• avoid encouraging voters to consider one response more favourably than
another
• avoid misleading voters
5.11 When undertaking a statutory assessment of a proposed question against
our guidelines, we consider the following criteria:
• Is the question written in plain language?
• Is the question written in neutral language, avoiding words that suggest a
judgement or opinion, either explicitly or implicitly?
• Is the information contained in the question factual, describing the
question and the options clearly and accurately?
• Does the question avoid assuming anything about voters’ views?
Assessing the intelligibility of referendum questions
5.12 It is important in the interests of confidence in the referendum and
acceptance of the result that there is clear statutory provision for an
9
Referendum question assessment guidelines (2009)
www.electoralcommission.org.uk/__data/assets/pdf_file/0006/82626/Referendum-Question-
guidelines-final.pdf
27independent and transparent assessment of the intelligibility of the proposed
question. An independent and transparent question assessment process also
helps to ensure that the debate focuses on the campaign arguments rather than
the referendum process.
5.13 The UK Government consultation paper expresses a preference for the
proposed referendum to be held in accordance with PPERA, which contains
provision for the UK Parliament to be provided with an assessment of the
intelligibility of the wording of proposed referendum questions by the Electoral
Commission. It is unclear from the Scottish Government consultation paper the
mechanism that they envisage being used to consider the intelligibility of the
proposed question.
5.14 Whatever the legislative process, there will be an important role for the
provision of informed and independent advice to the relevant Parliament about
the intelligibility of the question that is finally presented for legislative 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.
5.15 In any case, the relevant legislation must set out clearly and
unambiguously who is ultimately responsible for providing independent advice
to Parliament. This will be essential to avoid the potential for competing sources
of independent advice about the wording of the referendum question, which
could risk confusing consideration of the question by the relevant Parliament.
The question assessment process
5.16 Any process to assess the intelligibility of the proposed question should
include, 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
5.17 This is the basis of the approach to question assessment 10 which we have
followed most recently to assess proposed questions for two referendums held
in 2011 under PPERA, and for referendums at local authority level in England. 11
In each case, we have been able to use the evidence from our assessment – in
particular, our voter research – to identify problems and recommend changes to
10
Our approach to assessing the intelligibility of referendum questions (2009)
www.electoralcommission.org.uk/__data/assets/pdf_file/0005/82625/Referendum-Question-
statement-final.pdf
11
Reports of our views on the intelligibility of proposed referendum questions are published on
our website at: www.electoralcommission.org.uk/elections/referendums
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