Part VII : Referendums
195.The purpose of this Part is to make generic provision for the conduct of major referendums held in the United Kingdom. There does not presently exist any standing statutory authority, other than under Schedule 1 of the Northern Ireland Act 1998, enabling referendums to be held in the United Kingdom (nor is it the purpose of this legislation to make such provision). Consequently, dedicated primary legislation will normally continue to be required in order to provide for the holding of any particular major referendum.
Section 101 : Referendums to which this Part applies
196.Section 101 provides that the controls on the conduct of referendums set out in Part VII apply to any referendum held throughout the United Kingdom, one or more of England, Scotland, Wales or Northern Ireland, or any English region. The provisions do not apply to referendums held under section 36 of the Government of Wales Act 1998 (subsection (3)). There have been eight referendums to which the provisions of Part VII would have applied had they been in force at the time. The statutory authority for these referendums, the questions asked and the dates of the polls are set out in the table below:
United Kingdom Referendums 1973 – 1998
|Statutory authority||Question||Date of poll|
|Northern Ireland (Border Poll) Act 1972|
Do you want NI to remain part of the UK? or
Do you want NI to be joined with the Republic of Ireland, outside of the
|8 March 1973|
|Referendum Act 1975||Do you think that the UK should stay in the European Community (The Common Market)?||5 June 1975|
|Scotland Act 1978 (Section 85 and Schedule 17)||Do you want the provisions of the Scotland Act to be put into effect?||1 March 1979|
|Wales Act 1978 (Section 80 and Schedule 12)||Do you want the provisions of the Wales Act 1978 to be put into effect?||1 March 1979|
|Referendums (Scotland and Wales) Act 1997|
I agree that there should be a Scottish Parliament; or
I do not agree that there should be a Scottish Parliament
|11 September 1997|
I agree that a Scottish Parliament should have tax-varying powers; or
I do not agree that a Scottish Parliament should have tax-varying powers.
|Referendums (Scotland and Wales) Act 1997|
I agree that there should be a Welsh Assembly; or
I do not agree that there should be a Welsh Assembly
|18 September 1997|
|Greater London Authority (Referendum) Act 1998||Are you in favour of the Government’s proposals for a Greater London Authority, made up of an elected mayor and a separately elected assembly?||7 May 1998|
|Northern Ireland Negotiations (Referendum) Order 1998 (SI 1998/1126) (made under section 4(1) of the Northern Ireland (Entry to Negotiations, etc) Act 1996).||Do you support the agreement reached at the multi-party talks on Northern Ireland and set out in Command Paper 3883?||22 May 1998|
197.Subsection (2) defines a referendum as a referendum or poll held by or under an Act of Parliament on one or more specified questions. Subsection (4) provides that the Secretary of State may, by order, apply the arrangements for the conduct of referendums contained in this Part from the date of introduction of a Bill providing for a particular referendum.
Section 102: Referendum period
198.Section 102 defines the referendum period for any referendum to which Part VII applies. The period is relevant, in particular, to the restrictions on incurring expenses as provided for in sections 117 and 118 and Schedule 14. It is expected that the relevant period for any particular referendum will normally begin on the day the Bill providing for the referendum is introduced in Parliament, and end with the date of the poll. Under these provisions, the referendum period for the 1997 devolution referendum in Scotland would have commenced on 15 May 1997 (the date the Scotland and Wales (Referendum) Bill was introduced) and would have ended on 11 September 1997 (the date of the poll) - a total of 119 days.
Section 103 : Date of poll
199.This section provides that, where the date of a referendum poll is determined under any provision made by or under the Act providing for the referendum to be held (ie. when a Minister fixes the date), there must be a period of at least 28 days from the date by which the Electoral Commission must designate campaign organisations to the date of the poll. This minimum period is intended to ensure that a designated campaign organisation is afforded sufficient opportunity to mount an effective campaign and to make full use of the benefits afforded to it under section 110. This section does not apply to a referendum where the date of the poll is specified on the face of the Act providing for the referendum to be held. Nonetheless, the expectation in such cases will similarly be that there will be at least 28 days for campaigning following the designation of campaign organisations. By virtue of this section, together with the timetable for designation of umbrella campaign organisations under section 109, the minimum referendum period for any particular referendum would normally be ten weeks.
Section 104 : Referendum questions
200.Section 104 affords the Electoral Commission a role in setting a referendum question. Subsections (1) and (2) are concerned with the case where the wording of a referendum question is specified on the face of a Bill providing for a particular referendum to be held. In such a case the Commission is placed under a duty to consider the wording of the referendum question and to publish a statement setting out its views, if any, on the intelligibility of the question. The Commission is required to publish such a statement as soon as practicable after the introduction of the Bill in order that Parliament may take into account the Commission’s views during the passage of the Bill. Subsections (3) to (5) are concerned with the case where the wording of a referendum question is specified in subordinate legislation. In such a case the relevant Secretary of State is required to consult the Commission on the intelligibility of the referendum question before the draft statutory instrument is laid (if it is an affirmative instrument) or before the instrument is made (if it is a negative instrument). For the purpose of this section references to a referendum question include any preamble (subsection (6)).
Section 105 : Permitted participants
201.Subsection (1) defines a “permitted participant” in a particular referendum campaign. A permitted participant may be:
a registered party which has made a declaration to the Commission under section 106; or
any of the following which has given a notification to the Commission under section 106:
an individual resident in the United Kingdom or registered as an overseas elector;
anybody falling within section 54(2)(b) or (d) to (h), that is to say a registered company incorporated in a member state of the European Union and which carries on business in the United Kingdom; a trade union; a building society; a limited liability partnership; a friendly or industrial and provident society; or an unincorporated association which carries on business or other activities wholly or mainly in the United Kingdom and whose main office is there.
202.Subsection (2) defines a “responsible person” in relation to a permitted participant. The responsible person will discharge responsibilities in respect of the financial affairs of a permitted participant similar to those of the registered treasurer in respect of a political party.
Section 106 : Declarations and notifications for purposes of section 105
203.Section 106 sets out the requirements in respect of declarations made by registered parties and of notifications made by individuals, companies and other bodies. These include, in the case of companies and other bodies, a requirement that the notification must include the name of the person or officer responsible for compliance with the accounting and disclosure provisions of this Part (ie. the “responsible person”). Subsection (5) makes provision for a permitted participant to notify the Commission if any of its notified details need to be changed during the referendum period.
Section 107 : Register of declarations and notifications for the purposes of section 105
204.Section 107 requires the Electoral Commission to maintain a register of political parties which have made a declaration under section 106 and of other persons or bodies who have given a notification under that section.
Section 108 : Designation of organisations to whom assistance is available
205.Section 3 of the Referendum Act 1975 identified two umbrella campaign organisations (‘Britain in Europe’ and the ‘National Referendum Campaign’) which had emerged since the then government announced its intention to hold a referendum on continued membership of the Common Market. Section 108 enables the Electoral Commission to designate similar umbrella organisations in any referendum to which Part VII applies.
206.Where there are only two possible outcomes in a particular referendum (as has been the case with seven of the eight national or regional referendums held to date), subsection (2) provides that the Commission may designate one umbrella organisation for each of these outcomes. The Commission may not designate an umbrella campaign organisation for one side but not the other.
207.Where there are more than two possible outcomes (as was the case in the 1997 referendum on Scottish devolution), the Commission may designate an umbrella organisation for each of the possible outcomes specified by the Secretary of State (subsections (3) and (4)).
Section 109 : Applications for designation under section 108
208.Section 109 sets out the procedure and timetable for applications for designation and the basis on which the Commission is to determine such applications. The whole process, which commences at the start of the referendum period determined in accordance with section 102, takes a maximum of six weeks (four weeks for applications to be submitted and two weeks for the Commission to come to a decision), although there is a power (in subsection (6)) to vary the timetable by order.
209.The criterion for determining applications (namely, “whichever of the applicants appears to [the Electoral Commission] to represent to the greatest extent those campaigning for that outcome”) is similar to that employed in respect of the 1975 referendum where the Government undertook to identify two organisations “which adequately represent” each side of the question (see paragraph 40 of the White Paper ‘Referendum on United Kingdom Membership of the European Community’, February 1975, Cmnd 5925). Under subsection (5) it is possible for the Commission to decide that none of the applicant organisations in relation to a particular outcome qualifies should be designated. Where that is the case, section 108 (2) would require that no organisation be designated in respect of any of the possible outcomes of the referendum.
Section 110 and Schedule 12 : Assistance available to designated organisations
210.Section 110 and Schedule 12 confer certain benefits on designated umbrella organisations. Subsection (2) of section 110 provides that the Commission may award each designated organisation a grant of up to £600,000. This figure is broadly the equivalent at today’s prices of the £125,000 grant paid to each of the umbrella organisations in the 1975 referendum under the provisions of section 3 of the Referendum Act 1975. All umbrella organisations designated in connection with a particular referendum must receive the same level of grant. Such grants are intended to provide a designated campaign organisation with sufficient resources to mount an effective campaign. Subsection (3) enables the Commission to attach such conditions to a grant as they may determine. The conditions attached to the grants made to the umbrella groups in the 1975 referendum included a requirement that the grant be used only for purposes connected with the referendum; that the accounts were available for audit within two months of the date of the referendum; and that the accounts would be subject to audit by the Comptroller and Auditor General (Accounts of Campaigning Organisations, October 1975, Cmnd 6251). Subsection (4) and Schedule 12 confer benefits on designated referendum campaign organisations similar to those conferred on candidates and political parties at elections, namely:
the sending of a referendum address free to every household or elector;
the use of public rooms free of charge for holding public meetings; and
referendum campaign broadcasts. Under the terms of paragraph 4 of Schedule 12 the broadcasting authorities must, in determining their rules in respect of referendum broadcasts, have regard to any views expressed by the Electoral Commission.
Section 111 and Schedule 13 : Referendum expenses
211.Section 111 defines for the purposes of this Part the terms “referendum expenses”, “for referendum purposes” and “referendum campaign”. “Referendum expenses” are defined by reference to a list of qualifying expenses set out in Part I of Schedule 13. This Schedule mirrors Schedule 8, which similarly defines qualifying campaign expenditure for the purposes of Part V. As with Schedule 8, Schedule 13 allows for the Electoral Commission to provide guidance through means of a code of practice and for the amendment of Part I of the Schedule by order made by the Secretary of State.
Section 112 : Notional referendum expenses
212.Section 112 makes provision, equivalent to that in sections 73 and 86, for treating as referendum expenses the value of any property, services and facilities provided for the use or benefit of an individual or body campaigning in a referendum, either free of charge or at a substantial discount.
Sections 113 to 116 : General restrictions relating to referendum expenses incurred by permitted participants
213.In order to ensure proper observance of the limits on referendum expenses by permitted participants, sections 113 and 114 require that all such expenditure, and any payment in respect of such expenditure, must be authorised or made by the responsible person or a person authorised in writing by him. Similarly, section 115 requires that any claim for payment in respect of referendum expenses must be sent to the responsible person or other authorised person. These provisions (and section 116, which provides for disputed claims) are similar to the provisions in Part II of the Representation of the People Act 1983 concerning election expenditure by candidates and their agents.
Section 117 : General restriction on referendum expenses
214.Section 117 makes it an offence for a person to incur, during a referendum period, referendum expenses in excess of £10,000 unless they are a permitted participant.
Section 118 and Schedule 14 : Special restrictions on referendum expenses by permitted participants
215.Subsection (1) introduces Schedule 14 which imposes limits on referendum expenses incurred by permitted participants. The limits for participants in a UK-wide referendum are set out in paragraph 1(2) of Schedule 14.
216.The limits are as follows:
for a designated umbrella organisation - £5 million
for a registered political party a sum based on the percentage of the vote secured by the party at the previous parliamentary general election, namely:
|Percentage of UK vote|
|More than 30%||5|
|20 – 30%||4|
|10 – 20%||3|
|5 – 10%||2|
|Less than 5%||0.5|
other permitted participants - £0.5 million.
217.If a referendum were held under the provisions of Part VII during the course of the Parliament elected in 1997, the permitted limit for the main political parties would be as follows: Labour (43.2% of the vote) £5 million; Conservative (30.7%) £5 million; Liberal Democrat (16.8%) £3 million. All other political parties secured less than 5% of the UK-wide vote and would consequently have a limit of £500,000.
218.Paragraph 2 of Schedule 14 provides for the expenses limits in a referendum which is not a UK-wide referendum to be determined by order. Subsection (2) of section 118 makes it an offence for a permitted participant to incur referendum expenses in excess of the permitted limit.
Section 119 and Schedule 15 : Control of donations to permitted participants
219.Section 119 gives effect to Schedule 15 which provides for controls on donations to permitted participants in referendum campaigns. Part I of Schedule 15 defines donations to permitted participants in a referendum in terms equivalent to those in sections 50 to 52 in respect of donations to registered parties. Part II of Schedule 15 applies restrictions on the acceptance of donations equivalent to those in section 54 to 61. Part III of Schedule 15 provides that the return as to referendum expenses, required under section 120, must include a statement giving details of the source and amount of donations of more than £5,000 (including aggregate sums). The statement must also detail donations received, but rejected, from impermissible or unidentifiable donors. The requirements of section 119 and Schedule 15 do not apply to registered parties (other than a minor party) given that they will be subject to the ongoing controls on donations set out in Part IV.
Sections 120 to 124 : Returns
220.Sections 120 to 124 require a permitted participant which has incurred referendum expenses during any referendum period to make a return to the Electoral Commission as to those expenses. The requirements as to the content, auditing and submission of such a return are similar to those in sections 96 to 100 governing returns as to controlled election expenditure by third parties. In addition to detailing payments made in respect of referendum expenses, returns by permitted participants (other than registered parties) must also record relevant donations accepted for the purpose of meeting referendum expenses.
Section 125 : Restriction on publication etc. of promotional material by central and local government, etc
221.Section 125 prohibits the government of the day, a local authority or any other publicly-funded body from publishing promotional material in relation to a referendum in the 28 days prior to the date of the poll. The prohibition applies to material addressed or made available to the public at large but not to material specifically requested by a member of the public. The provisions of this section do not apply to the Electoral Commission, which could therefore, for example, publish material designed to encourage voting in a referendum.
Section 126 : Details to appear on referendum material
222.To help the Electoral Commission identify who is behind referendum publications, and therefore who has incurred referendum expenses, section 126 requires material relating to a referendum which is published during a referendum period to include certain specified information. Subsections (2) to (5) are concerned with printed material such as leaflets, posters and newspaper advertisements. Subsection (2) specifies the relevant details that must be included in a printed document, namely the name and address of the printer, promoter and any person on behalf of whom the material is published (and who is not the promoter). The “promoter” is defined in subsection (11) as the person causing the material to be published. This may be, for example, the agent of a permitted participant, if not the permitted participant itself. Where the “promoter” is not the permitted participant, that individual or organisation will instead be “the person on behalf of whom the material is published”. Subsection (3) is concerned with a single-sided document such as a poster. Subsection (4) is concerned with advertisements in newspapers or periodicals. Subsections (6) and (7) are concerned with material published in a non-printed format, for example on the internet or in the form of a video. To take account of changes in technology it is left to subordinate legislation to prescribe the manner and form which the promoter’s details are to appear on the material. The regulation-making power may only be exercised after consultation with the Commission. Subsections (8) to (10) create offences and provide for a defence where a contravention of the requirements took place in circumstances beyond a person’s control (for example, where the agent of a permitted participant supplied to a newspaper the text of an advertisement which included the relevant details, but owing to an error by the newspaper publisher these details did not appear in the advertisement as printed).
Section 127 : Referendum campaign broadcasts
223.Section 127 requires that broadcasters may only include a referendum campaign broadcast in their broadcast services if it is made on behalf of an organisation designated by the Electoral Commission under the provisions of section 108. This requirement (taken with that on broadcasters’ existing duty of impartiality) is intended to ensure that, in any referendum, each side of the campaign will have equal access to free airtime for referendum broadcasts. The two umbrella bodies in the 1975 referendum were each awarded free airtime for four ten-minute television broadcasts and three ten-minute and two five-minute radio broadcasts. Attempts to provide referendum broadcasts in the 1979 devolution referendums foundered following the decision of the Scottish courts in the case of Wilson v Independent Broadcasting Authority which held that the IBA, in deciding to allocate a broadcast to each of the four Scottish parliamentary political parties (which divided three to one in favour of devolution) had acted in breach of its statutory duty to ensure that programmes broadcast on the subject of the referendum maintained a proper balance.
Sections 128 and 129 : Conduct of referendums
224.Section 128 makes arrangements for the counting of votes in a referendum. The section designates the Chairman of the Electoral Commission as the Chief Counting Officer in any referendum to which Part VII applies (save in the case of a referendum held in Northern Ireland only where the Chief Electoral Officer is designated the Chief Counting Officer). The Chief Counting Officer is required to appoint a counting officer for each relevant local government area in Great Britain (the Chief Electoral Officer will be the counting officer in Northern Ireland) who will be responsible for certifying the result in that area before the result as a whole is certified by the Chief Counting Officer. Section 129 confers a power on the Secretary of State to make provision, by order, for regulating the conduct of referendums. Such an order may, in particular, create criminal offences and apply, with modifications, the provision of other enactments. The intention is to use the order-making power to apply those provisions of the Representation of the People Acts and Regulations that relate to the administration of a referendum poll (polling hours; arrangements for postal and absent voting; issue of polling cards etc.).