Public Law

Recent concerns about the scope for both sides to the independence debate to avoid strict spending limits have sparked discussion about the Electoral Commission’s powers to monitor financial and other irregularities in the run-up to the referendum.

In terms of the Edinburgh Agreement, the Electoral Commission is to have responsibility for overseeing the general conduct of the referendum (with the exception of the conduct of the poll and the announcement of the result). Its specific role is set out in the Scottish Independence Referendum Bill, currently making its way through the Scottish Parliament. These powers reflect the standards laid down by the Political Parties, Elections and Referendums Act 2000 (PPERA), which provides the general framework for referendums in the UK. The Scottish Government is required to have regard to the Commission’s views on certain matters, and the Commission has already issued detailed advice on the referendum question and the level of spending limits for referendum campaigners.

The most important parts of the Commission’s remit are its regulation of the campaign and campaign spending. The Bill includes provisions limiting the amount of expenses that can be incurred by those campaigning in the referendum; restricting the publication of certain material; and controlling donations, and the provision of loans and credit, to those campaigning. The Commission has warned that it will closely monitor campaign activities for compliance with the restrictions and will use its enforcement powers to intervene if it spots anything untoward.

The Bill confers various powers of investigation on the Commission (in line with its powers under PPERA) to look into any suspicious behaviour, including the power to issue a disclosure notice demanding proof of income and expenditure. If documents were unreasonably withheld the Commission could apply to a sheriff or justice of the peace for an inspection warrant to search premises.

The Bill also creates certain offences for withholding or failing to provide documents or information, or providing false information, to the Commission. Depending on the offence, the perpetrator may be liable to a fine or even face imprisonment.

The Electoral Commission also has its own civil enforcement powers, such as the power to issue fixed monetary penalties. If it reasonably believes the rules are being or will be breached, and that the activity in question is (or risks being) seriously damaging to public confidence in the legal controls on the referendum, it can also issue a stop notice prohibiting a person  from continuing or repeating the offending activity.

The Electoral Commission will want to ensure a fair and transparent referendum process, but it will be hoping not to have to rely on its enforcement powers. The Commission has never yet used its power to issue a stop notice. We will see whether the independence referendum will give it a reason to issue its first one.

Gemma McKinlay

Associate at Brodies LLP
Gemma is a senior solicitor in Brodies market-leading Public Law & Regulatory team in. She advises on a range of public law and commercial issues.  Her specific areas of practice expertise include powers and duties of local and central government, statutory interpretation, equality and human rights, data protection and freedom of information laws.
Gemma McKinlay