EU Referendum update - Leaflets and lead campaigners

Friday 15 April will mark the beginning of the referendum period during which campaigners will be restricted in their spending on campaigning activities.

The onset of the referendum period marks the conclusion of a busy week during which the Electoral Commission designated In Campaign Ltd (Britain Stronger in Europe) and - more controversially - Vote Leave as the lead campaigners for the 'remain' and 'leave' camps respectively. The week also saw the much debated distribution to every household in England of the government's £9 million leaflet setting out why it thinks the UK should remain in the EU.

In this update we focus on the appointment by the Commission of lead campaigners for each side of the debate, some of the controversy around recent publications by each side and pre-referendum purdah for public bodies. We also provide links to the latest guidance provided by the Commission.

Designated Lead Campaigners

Under the Political Parties, Elections and Referendums Act 2000 ('PPERA'), and the European Union Referendum Act 2015 ('the 2015 Act'), the Commission may designate lead campaign groups for both sides of the debate (or one side only in the event that no application is received from anyone in the opposite camp).

The benefits

Designation brings substantial benefits -

• an increased spending limit of £7 million,
• one free distribution of information to voters,
• referendum campaign broadcasts, and
• a grant of up to £600,000 from the Commission which can be used for costs including the administration associated with setting up and running a referendum campaign, TV broadcasts and the free mailing to voters that they are entitled to as lead campaigners.

The lead campaigners will also have a dedicated page in the Commission's public information booklet which will be distributed to all households in the UK (in both English and Welsh) in advance of the referendum. The booklet will include a link to a page on each lead campaigner's website which will outline its opinion on what will happen in the event of either referendum result.

The contenders

The Commission received four applications for designation as a lead campaigner. The sole applicant in respect of the 'remain' camp was the cross-party In Campaign Ltd (Britain Stronger in Europe). Designation in respect of the 'leave' camp was a more contested issue with applications from -

• the GO Movement Ltd (the umbrella group comprising Leave.EU and the Grassroots Out group, backed by UKIP leader Nigel Farage),
• the anti-austerity Trade Unionist and Socialist Coalition (TUSC), and
• Vote Leave Ltd (the group supported by the majority of pro-Brexit Conservative MPs, including Boris Johnson and Cabinet-level ministers Michael Gove, John Whittingdale, Theresa Villiers, Priti Patel and Chris Grayling, along with the majority of pro-Brexit MPs - 121 to the GO Movement's 14).

Although the GO Movement and Vote Leave were always set to vie for designation, the application from the TUSC came as a surprise to many. Fronted by former Labour MP Dave Nellist, and heavily funded by the Rail Union (RMT), it argues that neither of the other 'leave' contenders can speak for anti-austerity campaigners who want to leave the EU, due to their 'pro-business' and 'reactionary' views.

The test

The test for designation is laid down in section 109 of PPERA -

• in cases where there is only one applicant for designation in respect of an outcome, the Commission must designate that applicant unless it is not satisfied that it adequately represents those campaigning for that outcome,
• where there is more than one applicant in respect of an outcome, the Commission must designate whichever applicant appears to it to represent to the greatest extent those campaigning for that outcome (unless it is not satisfied that any of the applicants is adequately representative).

The Commission applied those tests by assessing applications against the following criteria -

• how the applicant's objectives fit with the referendum outcome it supports,
• the level and type of support for the application,
• how the applicant intends to engage with other campaigners,
• the applicant's organisational capacity to represent those campaigning for the outcome, and
• the applicant's capacity to deliver their campaign.

The result

Unsurprisingly, the designation for the 'remain' camp went to the In Campaign.

The decision which has attracted more debate, however, is the designation on the other side of Vote Leave. The score card published by the Commission shows that the decision was a finely balanced one, with Vote Leave being awarded 49 marks to the GO Movement's 45 (out of a possible 52). The differences between the two organisations came down to one mark each with respect to support for the applications and organisational capacity, and Vote Leave gained two marks over its rival in relation to representing other campaigners. Both organisations were awarded the same mark for organisation capacity.

Although it may be hotly debated, the decision - like that in respect of the 'remain' side - is relatively unsurprising. The Commission noted that the GO Movement and Vote Leave have a similar breadth of campaigner representation, but Vote Leave provided more evidence to demonstrate the depth of its ability to represent the 'leave' outcome, including at a regional and local level. Vote Leave also has a more 'establishment' feel which will have helped it.

Following the Commission's decision, some prominent members of the GO Movement, such as Nigel Farage and co-founder Peter Bone MP, have stated that they are prepared to work together with Vote Leave in pursuit of a Brexit. Others - most prominently Leave.EU founder Arron Banks - indicated that they were scrutinising the Commission's reasons for its decision with a view to a possible challenge. However, a statement from Aaron Banks this afternoon (14 April 2016) signalled that Leave.EU had stepped back from the brink of litigation. The statement made clear that Leave.EU is not happy with the decision and will 'show the public how this process was stitched up'.

Vote Leave's leaflet

The campaign tactics of the pro-Brexit lobby have been under scrutiny, with Vote Leave attracting criticism for allegedly 'peddling myths' as 'facts' in a leaflet - titled 'The UK and the European Union: The Facts'. Critics of the leaflet also contend that it did not make clear its connection to Vote Leave as it did not contain any of the latter's branding and directed readers to a website that seemed deliberately designed to appear impartial.

PPERA requires material published during the referendum period to clearly state the name and address of the printer, promoter or the person on whose behalf the material has been published. For a document of more than one side the relevant details must feature on either the front or back page.

Labour MP Chris Bryant has written to the Commission to ask it to investigate whether the leaflet breaks campaigning rules. Although the Commission has yet to comment, the answer must be 'no' as the leaflet was published prior to the commencement of the referendum period and therefore is out of the Commission's regulatory purview. There is also no requirement for a group's branding to appear on a leaflet and the example of how the requirement may be met in the Commission's guidance allows for relatively discreet allusion to the promoter.

The government's leaflet and purdah

Controversy around leafleting has not been confined to the 'leave' camp as the government attracted a great deal of opprobrium for its plans to send a 14 page pamphlet setting out its pro-EU position to every home in the UK. The leaflet - snappily entitled 'Why the government believes that voting to remain in the European Union is the best decision for the UK' - will cost £9 million of taxpayer's money and has been delivered to every household in England this week. It will also be sent to homes in Scotland, Wales and Northern Ireland throughout the week commencing 9 May following elections to the devolved administrations.

Similar leaflets have been sent by governments in advance of previous referendums. In advance of the 1975 referendum on continued membership of the Common Market, the government was criticised for distributing a summary version of its white paper setting out its case for remaining. In that case - in an era before PPERA - the government's leaflet was packaged together with copies of leaflets from organisations representing the 'yes' campaign (Britain in Europe) and the 'no' campaign (the National Referendum Campaign) in an effort to conduct the campaign fairly and to ensure voters were given equal access to arguments on both sides. However, the accusation was levelled that this meant that the 'yes' camp had two leaflets against the 'no' camp's one.

Although there are some parallels with 1975, we are in different territory from the furore surrounding the publication by the Scottish government of a white paper, 'Scotland's Future', in advance of the referendum on Scottish independence in 2014. The white paper included a description of the SNP's proposed programme for government should they win the 2016 Scottish Parliament elections in circumstances where Scotland had voted to leave the UK. It was therefore criticised as being a party political manifesto funded by public money.

The same criticism cannot, however, be levelled at the present government's leaflet as the splits in the Conservative party over the Brexit question mean that it cannot be said to outline that party's position.

Nor will its distribution during May fall foul of the rules around campaigning. The restrictions around government publications in the lead-up to a referendum which are found in section 125 of PPERA apply only in the 28 days before polling day (so from 27 May until 23 June), meaning that its distribution at the beginning of May will fall outside the relevant period. The Commission has, however, stated that the use of government funds for the leaflet was 'not in the spirit' of a fair referendum.

In response to a petition calling for a debate on the decision to send the leaflet (which will be held on 9 May) the government stated that '[t]he EU Referendum Act 2015 commits the Government to provide information to the public on EU membership ahead of the vote, and that is what we will do'. This would seem a little disingenuous as the information required by the 2015 Act has already been published in the form of the three reports on the outcome of the government's negotiations with the EU, on alternatives to EU membership and on the rights and obligations that derive from EU membership.

The government is, however, correct in its statement that section 125 of PPERA will apply from 27 May onwards. As we have previously discussed, in the face of stern opposition the government backed down in its plan to disapply section 125 through the 2015 Act. That Act does contain a power for the Minister to make regulations removing material published in a prescribed way or communications of a prescribed kind from the prohibition in section 125.

However, any such regulations would need to have been made no less than four months before the referendum (so by 23 February - three days after the announcement on 20 February of the referendum date). No such regulations have been made, which means that section 125 applies in its current form. It applies to ministers, government departments, local authorities and 'any other person or body whose expenses are defrayed wholly or mainly out of public funds or by any local authority' and precludes the publication of any material -

1. giving general information about the referendum or regarding the issues on which the referendum is held,
2. putting forward any arguments for or against a possible answer to the question asked in the referendum, or
3. encouraging voting in the referendum.

In advance of 27 May, guidance for civil servants set out in the letter from Sir Jeremy Heywood to permanent secretaries dated 23 February states that civil servants will continue to support Pro-EU Ministers including by providing briefings, explaining the government's policy and offering comment on other policy positions and how they could be implemented. That support does not extend to those Ministers who do not support the Government's pro-EU position, although civil servants may still check facts for such Ministers on request.

Sir Jeremy's letter also makes clear that the staff of public bodies are required to maintain political impartiality in conduct of public duties and that the general principles and conventions he sets out applies to the board members and staff of all non-departmental public bodies and similar public bodies.

Key Publications

Since our last update, the Commission has further published guidance on -

• public bodies and EU referendum material that they can publish,
• reporting deadlines, including during the referendum period,
• splitting campaign spending,
• an EU referendum public information booklet, and
• pre-poll reporting for EU referendum campaigners.

An overview of referendum 'do's and don'ts' will be published at a later date, but at this point all of the Commission's substantive guidance for campaigners is now available.

Guidance for civil servants to use during the 28 days leading up to the 23 June will also be published.

Next Steps

Campaigners must ensure that they have in place all of the necessary arrangements to meet the Commission's requirements during the referendum period, which starts on 15 April. Those requirements include caps on spending of £10,000 for those who have not registered with the Electoral Commission ('the Commission') as 'permitted participants'. For those that have registered - or do register - the cap will rise to £700,000, but will be accompanied by restrictions on loans and donations, together with reporting obligations both during the referendum period and after the poll has taken place.

Public bodies, whose expenses are defrayed wholly or mainly out of public funds, must ensure that they have regard to Sir Jeremy's guidance, particularly in their dealings with Ministers campaigning for a Brexit. They should also ensure that they are ready to limit their publication of relevant material when the curtain falls for the purdah period on 27 May.