This week it was revealed that the UK Government is considering a 23rd June date for the In/Out referendum on Britain’s membership of the European Union. Our Account Director, Luke Skipper examines the issues that make a June date tricky, especially for us in Scotland.
Timing isn’t everything in politics until of course you get it wrong. As speculation grows that the Prime Minister will be able to deliver his EU renegotiation deal in February so does the speculation that a referendum will be held in late June.
The SNP was the first party to raise objections to the possibility of a referendum on Europe being held on the same day as the Scottish Election. They won this concession during the passage of the EU Referendum Bill. When the June referendum date was floated the SNP raised objections to this being too close to the elections in Scotland, Wales and Northern Ireland.
Yesterday they were joined by the First Minister of Wales, and the First Minister and Deputy First Minister of Northern Ireland presenting David Cameron with a cross party, cross legislature alliance against a June referendum.
The Prime Minister and others were quick to point out that a June 23 election would leave a six-week gap and that people in those nations would be able to differentiate between an election and the referendum.
Those objecting to a June date argue that it is disrespectful as both campaigns will essentially run simultaneously and as Alex Salmond pointed out in a letter to the Prime Minister that soon as the people of Scotland have elected their government, that government would immediately be put back into purdah for the first six weeks of its existence.
What seems to have been lost on most commentators is that a June referendum could potentially create problems for the political parties and registered referendum campaigners during the Scottish Parliament election. It would be foolhardy for those wanting to campaign officially in the referendum to wait until the day after the election to start their campaign.
The Electoral Commission is in the unenviable position of having to give guidance to referendum campaigners without any current clarity about the date.
However in the interim they have provided some advice to referendum campaigners about the devolved elections. It highlights what many appear to have missed in that the regulated period for those elections has already started. Regardless of a ‘Six week’ campaign the fact is that in the eyes of the law it has already began. This has repercussion as spending on the referendum campaign may be regulated in the run up to election. In order for it to be regulated it has to pass two tests.
The first is the purpose test is:
“Spending on referendum campaigning may be regulated in the run up to the May 2016 elections if it can reasonably be regarded as intended to influence voters to vote for or against political parties or categories of candidates, including political parties or categories of candidates who support or do not support particular policies or issues at the elections.”
The second is the ‘public test’:
“spending must also be aimed at, seen or heard by, or involve the public”.
Interestingly those in tune with the relentless election cycle in Scotland will know there is recent precedent for this situation. The European Election of May 22 2014 happened before the referendum on Scottish Independence.
Keen observers will remember that the independence referendum took place in September and that is the suggestion being made by those objecting to a June referendum. Just as is the situation now, referendum campaigners were busy in the regulated period of that election. However the referendum for independence had two clear lead campaigns, which most importantly had overt support from all the major parties. Unionist parties in Better Together and those for independence in Yes.
The situation for the EU referendum couldn’t be more different. Parties learned harsh lessons about political alliances in referenda so they have made clear they will campaign separately in this referendum even if they share the same goal.
This could have significant ramifications if you consider the first test. The test considers if the tone of the message is supportive of a party, if it includes a call to action, and its context and timing. It is likely the case that some parties will only start campaigning in the referendum after the election, so by having it in June the first test could in some ways preclude them from that debate. One could argue that is undemocratic. It also raises questions about how campaign groups like Labour Leave would operate during the election. For the designated lead campaigners they will have to carefully consider what they are putting out and how they are doing it.
Now the Commission may take a relaxed view on those tests but then again it may not. This will be for the campaigners and political parties to test. By possibly having the referendum this close to the elections the one thing that is certain is that it will be tested in a hurry.