VERBATIM REPORT OF SPEECH BY ANTHONY OGILVIE, LLB
Secretary of the Congress for Democracy's Constitutional Committee

TO THE FIFTH CONGRESS FOR DEMOCRACY, 2 February 2001

The legislative framework that governs the whole conduct of holding referendums comes into effect in about two weeks' time and it is this document here - the Political Parties, Elections and Referendums Act 2000.

The Constitutional Committee's main objective was to persuade the government and Parliament that the proposed legislation should ensure a level playing field between the opposing parties involved in any referendum and that the body set up to oversee this process should be both independent and authoritative. I have to say that despite winning many of the arguments and all our efforts, the Act bears a very close resemblance to the Bill the government wanted from the start. Despite the repeated assurance of Ministers, in the end the government's strength in Parliament ensured that they got the Act they wanted.

There are a number of important issues the Committee identified which should give all of us particular concern.

Firstly, the independence of the Electoral Commission itself. At the very least, we believed that a senior member of the judiciary should be appointed as its Chairman. Some of you may have noticed that the names of the sixteen Commissioners have just been announced. The Commission will be chaired by Sam Younger, who is currently Director-General of the British Red Cross and previously Managing Director of the BBC World Service. It also includes Pamela Gordon, a Local Government Commissioner and former Chief Executive of Sheffield City Council; Sir Neil Mackintosh, Governor of the Scottish Council for Voluntary Organisations; Glyn Matthias, Public Affairs Manager at BBC Wales; Karamjit Singh, Member of the Criminal Cases Review Commission; and Professor Graham Zellick, Vice-Chancellor of London University. I am just a simple lawyer, but I have to say that if I wanted to create a Commission which would ensure that there would be absolutely no opposition whatsoever to the government's proposals to win and get through a referendum campaign, this is the sort of Commission that I would be hoping for.

The whole timetable of holding a referendum remains very much in the hands of the government and in particular of the Home Secretary. The Commission may be consulted over its conduct but they have no real powers.

The only significant change from the Bill is in Section 104(2) that "requires that the Commission shall consider the wording of the referendum question itself and publish any comment on the intelligibility of the question". The government does seem to have listened to our argument about the fairness of the question and that the question should be not loaded or ambiguous.

There is no reference in the Act to minimum voting thresholds nor to any percentage necessary to achieve democratic legitimacy. As in the Bill the limit on expenditure is £10,000 unless one is a permitted participant. Permitted participants are the appointed umbrella organisations, and political parties - whose expenditure is limited to a percentage of their vote received at the previous general election - and, as Lord Neill said, any such restriction would be impractical and undesirable. You will be glad to know that companies that are incorporated in the EU may under Section 54b contribute to a UK referendum campaign! The Committee felt, and still feels, that under this particular piece of legislation significant imbalances in funding will occur.

Lastly and perhaps most importantly, the government's own role in the run-up to polling day is restricted only to the last 28 days of any campaign. Whilst the government's administrative machine is only circumscribed between a short time-frame, the restrictions on publicity are riddled with exemptions. Thus the government can issue press releases, can take enquiries from individuals and so on. In short it is the Home Secretary of the day who is responsible for introducing any referendum. Any Bill, Statutory Instrument or Regulation is very much a matter for the Home Secretary. However, in conclusion the Commission is given power to promote under Section 13 "public awareness of the institutions of the European Union".

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