A gratefully-received guest from Thomas Widmann, who blogs here.Â
The SNP didn’t react kindly to the restrictions imposed on the independence referendum by the Unionist parties. Most of the differences between the two sides  are easily explainable in terms of expected votes. For instance, the SNP are clearly expecting voters under 18 to be more favourable towards independence than other voters, especially after being enfranchised by the SNP government. In the same way, Westminster’s suggestion that EU nationals living in Scotland should be allowed to take part is probably (but wrongly, in my view) due to an expectation that they’ll support the union more strongly than UK nationals.
However, it’s not immediately obvious why the SNP find the Electoral Commission unacceptable. After all, they seem perfectly happy to let the EC’s Scottish office be in charge of elections to the Scottish Parliament. Most observers have just hand-waved this issue away by saying that the SNP dislike anything made in the UK (and the EC is a body created by the UK government), or assumed that it’s just an unimportant demand so that they have something to trade in during
negotiations with Westminster.
I don’t think it’s as simple as that, though. The SNP have been planning for this for a very long time, and they normally have very good long-term reasons for what they do, just like their attack on the Supreme Court, which could be seen as a precaution in case the independence referendum ends up there.
So what are the issues with the Electoral Commission? There are at several areas that could be important.
First of all, there are very few Scots in the Electoral Commission. Currently there are two Scottish commissioners (John McCormick and George Reid), but the latter will be replaced in October, and probably not by an SNP member (the small parties at Westminster take turns). This makes it more likely that they’ll rule in favour of the Unionist side if there is a dispute, especially given that the commissioners are accountable directly to the UK Parliament.
Secondly, as pointed out in a recent comment on this blog by Alwyn ap Huw, if we look at their role in the recent referendum on increased powers for the Welsh Assembly, they might restrict the allowed spending to figures that would favour the Unionist parties. In Wales, the spending limits were £600k for a vote share of more than 30%; £480k for a vote share between 20% and 30%, £360k for a share between 10% and 20%, and £100 for smaller parties. If we use the list votes from the election to the Scottish Parliament in 2011 as a guide, and double the spending limits given Scotland’s size, such a rule could produce the following figures: Yes £1,400 (SNP £1,200k, Green £200k), No £1,880k (Labour £960k, Tories £720k, LibDems £200k). However, it appears that although the Electoral Commission would make a recommendation on the limits, they would be defined by the Scottish Parliament when calling the referendum, and they would apply only for a specific period of time before the referendum anyway, so this is unlikely to be the main reason.
Thirdly, the Electoral Commission seems to be following the Political Parties, Elections and Referendums Act (PPERA) to the letter, and it contains very specific rules on many aspects of holding a referendum, some of which could be favourable to the Unionists. It could be easier to escape the limitations of PPERA if the Electoral Commission were not involved, especially if the referendum had been called by the Scottish Parliament without Westminster’s blessing, simply because the referendum wouldn’t necessarily have a legal basis anyway.
One aspect that is of particular interest here is that “overseas donations are prohibited by PPERA, since only those individuals who are on a UK electoral register, and only organisations that are registered and carry on business in the UK, can make donations to politicals organisations in the UK“, according to the EC. In other words, PPERA doesn’t seem to prevent the No side from getting funding from England, while blocking funding from expat Scots around the world.  I presume the Yes side would want to treat English and overseas donations the same way.
This could be quite a big deal. 2014 is the second Year of Homecoming, and together with the Commonwealth Games and the Ryder Cup it is likely to bring significant numbers of expat Scots to Scotland, many of whom are likely to have a romantic view of Scottish independence. If this source of income is denied to the Yes side, while the No side can get plenty of funding from English businesses with a logistic interest in keeping the Union together, it could be problematic.
On the other hand, many people are extremely enthusiastic about the prospect of an independent Scotland, while very few Unionists have equally strong feelings, so my guess is the Yes side should by default get the most donations, if allowed by the Electoral Commission.
#1 by Albalha on January 23, 2012 - 3:40 pm
Interesting article, thanks. Of course there is the BBC story of recent days sourced to a ‘senior SNP’ person indicating there may be a softening towards EC involvement if it reports to Holyrood, wonder if anyone has further detail? And if this could be a likely outcome.
#2 by Indy on January 23, 2012 - 3:42 pm
Firstly, you have got mixed up with your electoral rules. The SG is proposing to use the local government/Scottish Parliament elections register in which European Union citizens resident in Scotland CAN vote. However, citizens of other EU member states resident in the UK cannot vote in UK Parliamentary elections. The suggestion has been made by some that the Westminser register should be used, which allows people who are registered as overseas electors to vote but does not allow EU nationals resident in Scotland to vote but that is not the SG’s preference.
Secondly, the reasoning behind setting up a separate commission to oversee the referendum was set out in the consultation on the draft referendum bill last session – the SG wanted to ensure that the members had no political baggage, so no ex-MPs or MSPs or MEPs would be allowed and no political lobbyists either. And the body was to be accountable to the Scottish Parliament, which the Electoral Commission is not.
Thirdly on the financial side of things the SG also set out proposed spending limits and I’d be surprised if they changed. For “Designated organisations†i.e the Yes campaign and the No campaign (and possibly the Somewhere in the Middle campaign) the proposed spending limit was £750,000
For political parties represented in the Scottish Parliament it was £100,000
Other permitted participants were allowed £37,000
Individuals or bodies that are not permitted participants £3,000.
Fourthly, although PPERA rules apply only to referendums held in consequence of an Act of the UK Parliament, the legislation regarding donations to political parties applies whether or not the Electoral Commission oversees the referendum. It covers donations to political parties in all circumstances. If you knowingly accept a donation from an impermissible donor you are breaking the law, full stop.
Of course people could also donate directly to one of the designated organisations and the draft referendum bill from last session set out the conditions for that – donations worth more than £500 to be reported. Anonymous donations or donations from individuals or organisations from outside the UK not acceptable so identical to PPERA. Again, I would be very surprised indeed if this were to change.
#3 by Thomas Widmann on January 27, 2012 - 9:50 am
As for EU citizens, there definitely have been reports that the SG didn’t want them to vote in the referendum. I had a look at the consultation document yesterday, and even that doesn’t seem clear — it seems to allow them in the main text but not in the draft act.
As for the reasoning behind it, in politics the reason given is not always the real reason. The idea behind this blog posting was to explore whether there could be other reasons lurking behind the official one.
As for the spending limits, I was well aware of the proposals by the SG. However, I wanted to have a look at what the EC have enforced in the past to see whether that would be substantially different — after all, if the SG proposed one thing, but the EC claimed that wasn’t fair, it would have to be changed if the EC are in charge.
As for the PPERA rules, my thinking was that the SG would want to add extra limits on top of them, limiting spending from England, and if so, it would perhaps be harder to get the EC to enforce those extra limits than to get a separate body to do so.
#4 by Fraser Wight on January 23, 2012 - 6:14 pm
The SNP are going to accept the Electoral Commission just so long as it reports directly to Holyrood – thus stopping Westminster throwing wrenches in every now and then (or even a few weeks before the referendum!)
So um…yeah…
#5 by Thomas Widmann on January 27, 2012 - 9:37 am
Yes, we know that now. I wrote the piece a few days before it was published here, and it wasn’t yet clear what the SNP were going to do at that point.
In retrospect, it turns out the SNP were less concerned with the rules normally enforced by the Electoral Commission, and more with the loyalties of a body reporting to a Unionist parliament.
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#6 by Barbarian on January 24, 2012 - 10:10 pm
With regards to donations, I think business-linked donations should be prohibited. However, the easy way round this is by making it a personal donation. What might stop things is a limit on the amount an individual can donate within a fixed time period. Yes, that can also be negotiated around by giving the money to lots of people.
As to election rules, there absolutely must be an equal limit for all sides in a contest. You cannot give advantages to one side as that can have a substantial impact on voting results.
One thing that will be of interest is how much is the taxpayer expected to cough up for the Referendum. God help the SNP if they lose.
#7 by Thomas Widmann on January 27, 2012 - 9:35 am
Unfortunately, I don’t think you can realistically enforce equal limits for both sides, except for banning all spending outwith the designated campaign organisations. For instance, imagine if one side is backed by a few very rich individuals and companies, while the other side is backed by a very large number of poor individuals only — it’s almost impossible to create a level playing field in that situation.