Our public law experts provide an update on the European Union Referendum Act 2015 in its final form, highlight the further steps to be taken by Parliament and the Electoral Commission prior to the referendum and sound a note of warning to those that will be campaigning on EU membership prior to the elections this May.

In its manifesto for the 2015 general election the Conservative Party promised to hold a referendum on whether or not the UK should remain part of the EU.

In our note last October we provided some background on the law which governs referendums, highlighted some of the controversial issues that arose during the passage of the EU Referendum Act 2015 in the House of Commons and provided some practical pointers for those who may wish to become involved in campaigning during the lead up to the referendum.

The EU referendum will be held under the Political Parties, Elections and Referendums Act 2000 (PPERA) as supplemented by the EU Referendum Act. No date has been set for the referendum, but the Act provides that it must take place by 31 December 2017.

As the Act has received royal assent we can now provide an update on how some of the controversial issues have been resolved and indicate the further steps that will need to be taken prior to the referendum. We also provide a note of warning for those who have begun, or intend, to campaign early in light of the upcoming regional elections in May 2016.

The controversial issues

In our October note we identified two issues of controversy during the EU Referendum Act's passage through the House of Commons - the wording of the question to be asked in the referendum and the constraints placed upon ministers and civil servants in the period immediately before the referendum.

We set out below the position that the Act takes on both of those questions. We also consider the issue which caused greatest debate in the House of Lords, which was whether the franchise should be extended to 16 and 17 year olds.

The referendum question

As anticipated, the question to be put to the public in the referendum has remained that recommended by the Electoral Commission (the Commission) - 'Should the United Kingdom remain a member of the European Union or leave the European Union?', the response to which will be either 'Remain a member of the European Union' or 'Leave the European Union'.

Purdah

Section 125 of PPERA applies within the 28 days before a referendum 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.

The restrictions apply 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'.

The purpose of this period, known as 'purdah' in reference to the political convention which operates in the run-up to an election, is to remove any advantage that the incumbent government may have and to preserve the neutrality of the civil service.

In relation to the EU referendum, the government's initial position was that section 125 should be disapplied as it would prevent ministers from conducting the ordinary day-to-day business of the UK's dealings with the EU and create legal risk and uncertainty in the final weeks before the referendum.

In the face of opposition, the government agreed an amendment during the Act's report stage in the House of Commons removing the clause which had disapplied section 125 but retaining 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.

Various amendments to this power, and concerning the application of section 125 in general, were debated by the Lords, reflecting the fact that concern remained over the ability of the executive to sway the argument in favour of remaining within the EU. However, none of the debated amendments were ultimately made.

The position therefore remains that section 125 will have effect, save to the extent that it is disapplied by regulations in respect of certain types of publication. Any such regulations must be approved by both Houses of Parliament under the affirmative resolution procedure and there will therefore be an opportunity for further debate on the issue. As we pointed out previously, however, Parliament will not be able to amend the regulations and must either accept or reject them in their entirety.

The franchise

Although the purdah issue was an important one for the Lords, that which initiated the most vigorous debate was the extension of the franchise for the referendum to 16 and 17 year olds. The possibility of such an extension had been advanced in the House of Commons but had been successfully resisted by the government.

An opposition amendment giving the vote to those who would be aged 16 or 17 years old on the date of the referendum was agreed on the first day of the report stage in the House of Lords following a number of speeches at first reading referencing the fact that the franchise was being extended to allow peers to vote and that 16 and 17 year olds were allowed to vote in the Scottish independence referendum.

Upon return to the House of Commons that amendment was rejected, however, with the reason given that 'it would involve a charge on public funds'.

It is important to note that the government's appeal to financial privilege in this context is not a replay of the constitutional arguments that followed the Lords defeat of the government's proposal regarding tax credits in October 2015. Those issues are the subject of a separate note by our public law team.

Amendments by the Lords are scrutinised by clerks in the House of Commons, acting under the authority of the Speaker of the House, to assess whether they have any cost implications. Any amendment that increases spending over a certain de minimis amount may be identified as engaging financial privilege and, if so, a note to that effect is made on the Commons business papers. The Commons may waive its privilege to accept the amendment and, if it does not, that privilege is automatically cited as the reason for rejection given to the Lords.

In the face of a rejection citing financial privilege the Lords may still suggest an alternative amendment which itself has costs implications. Such was the case in relation to the EU Referendum Act where the Lords debated an alternative which specifically sought to minimise costs through the use of 'low-cost communication such as email, in particular making use of school email services'. That alternative was not suggested to the Commons, however, following a narrow defeat by 17 votes in the Lords.

The franchise for the referendum therefore remains:

  • persons allowed to vote in UK parliamentary elections - this includes British citizens in the UK and those registered as overseas voters, together with resident Irish citizens and qualifying Commonwealth citizens resident in the UK,
  • members of the House of Lords entitled to vote in local or European Parliamentary elections, and
  • persons in Gibraltar entitled to vote in European Parliamentary elections.

We note in passing that the day before rejecting the Lords' amendment on the voting age for the EU referendum, the Commons rejected an amendment to the Cities and Local Government Devolution Bill lowering the voting age for local government elections in England and Wales to 16. With the power to lower the voting age for elections to the Scottish Parliament already devolved - together with the Draft Wales Bill set to do the same for the Welsh Assembly - and the Prime Minister's promise of a Commons' vote on the voting age for Westminster elections, there is likely to be a lot more debate on the franchise more broadly during 2016.

What the Lords have added

Apart from several technical amendments to the rules for campaigners set out in the Act, the Lords made three amendments of more general interest.

The first two were government amendments which introduced duties on the Secretary of State to publish two reports at least ten weeks before the date of the referendum - one outlining the outcome of the government's reform negotiations with the EU, and its opinion on this outcome, and the other concerning the rights and obligations arising under EU law, and examples of the arrangements other non-member countries have with the EU.

In describing the second of these reports, Baroness Anelay of St Johns clarified that it will cover rights and obligations that the UK has as a member state of the EU, and also the rights that are granted to, and imposed on, individuals and businesses as a result of the UK's membership.

The third amendment concerned the Commission's power to designate a lead campaigning organisation for each side of the campaign. Such designated campaigners enjoy certain benefits over other campaigners such as increased spending limits in relation to the referendum, free distribution of information to electors and an entitlement to run campaign broadcasts.

Under existing provisions in PPERA, where there are only two possible outcomes in a referendum, the Commission may only make designations for both sides of the campaign or neither. The amendment by the Lords will allow the Commission to designate a single campaign organisation to represent one side of the campaign, in the event that no acceptable application is made in respect of the other side. If only one campaign organisation is designated, the organisation will be entitled to free referendum addresses and the use of public rooms, but not to referendum broadcasts and public funding. The intention behind the amendment is to prevent a campaigner on one side deliberately declining to apply for designation in order to deprive the other side of the benefits of designation.

Next steps

The substantive provisions of the EU Referendum Act have not yet been commenced, and several additional pieces of secondary legislation must be laid, debated and approved by Parliament under the affirmative resolution procedure before the referendum can take place.

Regulations are required to:

  • specify the date of the referendum (although the date must be no later than 31 December 2017 and must not be 5 May 2016 or 4 May 2017),
  • set the length of the referendum period with respect to which spending by campaigners will be regulated,
  • allow campaigners to register with the Commission as permitted participants in the referendum and apply to the Commission to be designated as the lead campaigner for each side of the referendum debate,
  • set the requirements for campaigners to report on donations and loans before the poll, and
  • specify the detailed rules for the administration of the poll and provide funding for Counting Officers to deliver the referendum poll.

As noted above, the Minister may also make regulations restricting the application of section 125 of PPERA.

The Commission intends to publish guidance for campaigners as it has done in respect of previous referendums. Initial guidance, which it aims to publish this month, will provide an overview of the rules around the EU referendum, as well as general information for campaigners on registration with, and applications for designation by, the Commission.

Once the necessary regulations have been made the Commission will then publish more detailed guidance for campaigners on:

  • timetables and deadlines,
  • managing spending,
  • working together with other referendum campaigners,
  • the rules on donations and loans,
  • the requirements of pre-poll reporting, and
  • public bodies and referendum material.

A final note of warning

Those who have already begun campaigning for an outcome in the EU referendum should take note of the possible effects of the upcoming elections for the Scottish Parliament, Northern Ireland Assembly, National Assembly for Wales and Police and Crime Commissioners in Wales.

Campaigning during these elections will be regulated between 5 January 2016 and polling day on 5 May 2016. Campaigners in relation to the EU referendum should be careful that their activities do not contravene non-party campaigning rules in relation to those elections if their activities are aimed at the public and can reasonably be regarded as intended to influence voters to vote for or against particular political parties or categories of candidates, including those who have a particular stance on the UK's continued membership of the EU.