The regulation of the EU referendum: lessons to be learned

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On 25 October the Constitution Unit hosted a distinguished panel to discuss the regulation of referendums in the UK in light of the EU referendum. The panel, chaired by the Unit’s Dr Alan Renwick, consisted of Jenny Watson, Chair of the Electoral Commission; Ric Bailey, Chief Adviser, Politics at the BBC; Sir Peter Housden, former Permanent Secretary to the Scottish Government, and Dr Paul Kildea, Senior Lecturer in Law at the University of New South Wales. Alex Quirk reports.

The EU referendum in June raised many questions about how referendums in the UK should be conducted. Electoral Commission research showed that 52 per cent of voters felt that the referendum campaign was not conducted in a ‘fair and balanced’ way. How is it that we can best strike the balance between allowing campaigners to speak freely to voters, and preventing a cloud of misinformation from obscuring peoples’ judgements? Is it appropriate for the government to be able to use public funds to campaign for one side of the debate? This event provided insights on these questions from experts from across a wide range of perspectives.

Jenny Watson

Jenny Watson is currently the Chair of the Electoral Commission, which is responsible for overseeing referendums in the UK, and was also the Chief Counting Officer for the EU referendum. She focused her introductory comments on the ways in which the legislative framework surrounding referendum campaigning should be altered to provide increased clarity and fairness, particularly regarding campaign spending rules.

The Political Parties, Elections and Referendums Act (PPERA), currently provides only the bare bones of the regulatory framework for referendums in the UK. This structure then needs to be fleshed out by specific supplementary legislation for each referendum such as the EU Referendum Act 2015. Watson argued for the augmentation of PPERA, to provide a more solid legislative platform in advance of a referendum. She especially recommended reform of section 125, which covers government spending of public funds. This section, she argued, needs to be altered to further restrict the ways in which the government can use public money, as there is currently an imbalance between restrictions placed on government spending, and those placed on spending by other campaigners. Making these changes will help to rectify the perceived campaigning imbalance that results from such heavy government involvement.

One function of the Electoral Commission that came under particular scrutiny during the referendum was its statutory role as designator of the ‘lead campaigner’ groups. This was the first time the legislation had been properly put to the test, as there had never before been multiple well-funded applicants in the running to lead a campaign (the Commission was required to choose between Vote Leave, eventually the successful applicant, and Grassroots Out for the Leave designation). In light of this experience, Watson argued that the statutory timetable for designation of lead campaigners, which currently allows four weeks for applications to be submitted and two weeks for the Commission to decide, does not allow sufficient time for this important process. She also suggested that the designation should happen further ahead of future referendums to allow the lead campaigners more time to secure funding. Continue reading

Solomon Grundy does constitutional change: The Smith Commission timetable to transform the Scottish Parliament

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Stephen Tierney expresses concerns over the Smith Commission timetable, highlighting that the speed leaves little time for appropriate due diligence and detracts from the democratic credibility of the process. He argues that there is a need for restraint, and a more independent and inclusive review over a longer period.

In the month of November the Smith Commission is set to draw up the most significant programme of constitutional change for the United Kingdom since 1998. Already the period within which citizens could submit their views on this process has passed; the Commission having set a deadline of 5 p.m. on 31 October.

Such a rapid process runs counter to both the due diligence that is surely needed before any decision is taken to restructure the UK tax (and possibly welfare) systems so radically and the due process which ought to accompany such a seminal constitutional development. Unfortunately the principles of deliberative constitutional decision-making and popular democratic engagement which figured strongly in the recent independence referendum are unlikely to gain much traction in the current rush to change.

The referendum campaign was indeed a remarkable period of citizen empowerment. The turnout of 84.7% is only one dimension of this; in a deeper way many citizens were greatly invigorated by the referendum and the role they had in discussing and ultimately in making such a huge decision. The Smith Commission process, by contrast, bears all the hallmarks of a return to elite-led constitutional change; and it is deeply ironic that the impetus for such a rapid and party-led process should be the independence referendum itself. As the 18th of September approached and the polls seemed to tighten, the leaders of the main unionist parties issued ‘The Vow’, promising more powers for the Scottish Parliament and setting out a firm timetable for change.

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Scotland after the Referendum: “It was business as usual that got us into this position in the first place”

October’s seminar at the Constitution Unit entitled The Day After Judgement: Scotland and the UK after the Referendum responded to the vote on independence held in Scotland on 18 September. Professor Jim Gallagher and Professor Iain McLean discussed the future of the UK Union and the devolution of power from Westminster to Holyrood. Julian Payne reports.

At the Scottish independence referendum on 18 September more than 55% of Scots voted in favour of remaining in the United Kingdom. Last week, at the latest Constitution Unit seminar, the repercussions of this decision were discussed by Professor Jim Gallagher and Professor Iain McLean, both distinguished academics with extensive experience in devolution. The speakers emphasised that following the referendum it would be wrong to assume that we can revert to ‘business as usual’. Instead, what is required is a system of devolution for Scotland that is in line with the Union that was defended in the referendum.

The question of a referendum was first raised in 2007 when the Scottish National Party (SNP) formed a minority government in Scotland. Polling data going back to 1999 suggested that an independence referendum was never going to yield a majority yes vote. Why did the SNP say they wanted a referendum when the Scottish Parliament did not have the legal power to hold one and data suggested they were going to lose anyway? According to Prof. McLean, the insistence on a referendum for Scottish independence can be attributed to ‘cheap talk’ – it cost nothing to say and it would be voted down in the Scottish Parliament anyway. However, the election of an SNP majority administration in Edinburgh in 2011 and the promise of a referendum in the SNP manifesto meant that there was no turning back.

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The English Question: A Bluffer’s Guide

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Robert Hazell offers a quick introduction to all the different answers to the English Question. A more detailed explanation of the reasoning behind the answers can be viewed here.

 

  • Devolution to Scotland and Wales and Northern Ireland throws up related questions about the government of England. These fall into two broad kinds: giving England a stronger political voice; and devolving power within England.
  • To rebalance the Union, England could find a stronger political voice through an English Parliament, or English votes on English laws.
  • To devolve power within England, possible solutions include: regional government; city regions; stronger local government; elected mayors.
  • The Conservatives have focused on rebalancing the Union, arguing for English votes on English laws. They are opposed to regional government. Labour when in government focused on devolving power within England, strengthening the regional tier, but failed in their attempt to introduce elected regional assemblies.
  • An English Parliament would create a federation of the four historic nations of the UK. Such a federation could not work because England would be too dominant. An English Parliament would be a rival to Westminster, and could come to be seen as just as remote. Few heavyweight politicians have espoused it, and support for the idea remains flat.

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Scotland has voted decisively to stay – now devolution must be delivered

Today’s result came as a relief to many but it is not an excuse for complacency. Jim Gallagher writes that both Westminster and Holyrood must consider the lessons learned from the campaign and start delivering politics for Scotland, not just about Scotland.

Well it’s over. 2 years of campaigning. 5 years of shadowboxing before that. Acres of newsprint, millions of social media posts. TV debates, and family arguments. Street stalls, and chanting mobs outside the national broadcaster. Oh, and truckloads of academic analysis. It’s been a fascinating, exhilarating but also worrying campaign.

But Scotland has finally made a decision. Independence has been rejected, and the UK affirmed. In an extraordinary democratic act, 97% of the population registered to vote and 85% of those voted. The authority that gives the decision is overwhelming. The choice is made.

For many people the overwhelming feeling will be one of relief. They didn’t demand a referendum, and were never part of the Yes project. It was not campaigning that made them worried about the risks. They are Scots who were comfortable in their own constitutional skin, and have now been found to be the majority.

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10 things you need to know about what will happen if Scotland votes Yes

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As the Scottish independence referendum draws closer the outcome is hard to predict. Both Westminster politicians and the wider public are asking what – in practical terms – would happen if the Scots were to vote Yes. Robert Hazell offers a 10-point overview of what the road to independence might look like.

 

The timetable

1. Scotland will not immediately become independent. On the SNP’s proposed timetable, it would take 18 months for Scotland to achieve independence, in March 2016, just in time for the next elections to the Scottish Parliament in May 2016. In that 18 month period there will need to be intensive negotiations on all the issues listed in point 5 below, and more.

2. This 18 month timetable ignores two potential difficulties. The first is the UK general election in May 2015. That will require a pause in the negotiations of at least two months while the UK team of negotiators campaign in the Westminster election. A change of government in the UK will result in new negotiating teams, who will need time to get up to speed.

3. The second difficulty is the need for legislation. There might be a need for paving legislation at the start of the negotiations. Legislation will also be needed at the conclusion to grant Scotland independence on the terms which have been agreed. On many issues Alex Salmond wants a partnership or sharing arrangement with the UK (sterling being the most notable example). That will need to be given effect in legislation, along with the division of all the main assets and liabilities of the UK state. The legislation will be big and complex, and some of it will be controversial. There may need to be several bills rather than one omnibus bill. The legislation is likely to take a year or more to be passed by Westminster. For comparison, the Scotland Act 1998 took 11 months to pass, but in very favourable circumstances and with a huge government majority.

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Will the Scottish referendum produce ‘a decisive and respected outcome’?

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With exactly one month to go until the referendum in Scotland, Barry K Winetrobe challenges the assumption that the outcome will resolve the independence debate. He explores scenarios where even a Yes vote might not (or perhaps even should not) produce an independent state.

As the Scottish independence referendum campaign reaches its final days, it may be worth highlighting a little-discussed aspect which may become very relevant immediately after 18 September – the assumption that the referendum will resolve the matter, either by a Yes vote inevitably leading to independence, or a No vote leading to the continuation of the present UK, probably with more devolution.

Is this assumption valid, especially if there is a Yes vote? Will any Yes outcome inevitably and irrevocably lead, in some to-be-determined process over the coming months, to the creation of an independent Scotland outside the UK?

This assumption seems to derive from the 2012 Edinburgh Agreement between the UK and Scottish Governments, certainly in the view of the Lords Constitution Committee in its recent inquiry on the constitutional implications of the referendum. Its May 2014 report stated that

the UK Government…in the ‘Edinburgh agreement’ of October 2012, agreed to accept as binding the result of a referendum held before the end of 2014 (para 3) and the Edinburgh agreement was for a ‘decisive’ referendum whose outcome will be respected on both sides (para 67).

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