The European Union Referendum Bill 2015-16 (the Bill) provides for a referendum on the UK’s membership of the European Union to be held before the end of 2017. The Bill does not specify the date of the referendum. This has led to speculation over when the referendum will be held, and when we will find out. There are provisions in the Bill and in the Political Parties, Elections and Referendums Act 2000 (PPERA) that affect the minimum length of time between the announcement of the date of the referendum and the poll. With the Bill currently in the House of Lords, these provisions could still change. In this post, I explain how the date of the poll will be set and when purdah and campaign finance rules come into effect, under the Bill in its current form.

The date of the poll

The date of the referendum has not been announced. The date will be set by the Government in regulations under the Bill, subject to the affirmative procedure (they will need to be approved by both Houses of Parliament). The Government is free to decide when to bring forward such regulations, but the date of the poll must be at least 28 days after the day on which the ‘lead campaign organisations’ are designated by the Electoral Commission. Lead campaign organisations are allowed to spend more than other campaigners and are entitled to public subsidies. The Electoral Commission must either designate one lead campaign organisation for each side of the campaign, or none at all.

The Bill gives the Government the power to determine when the period of designation starts, and how long it will last, in regulations that are subject to the negative procedure (they can be annulled by either House of Parliament). These regulations would modify provisions in PPERA that currently define this period as six weeks.

John Penrose, Minister for Political and Constitutional Reform, has proposed to simultaneously bring forward two regulations 16 weeks before the date of the referendum:

  • A statutory instrument (SI) to set the date of the referendum (subject to the affirmative procedure). The Minister said such SIs usually take six weeks to pass through Parliament.
  • A SI to begin the process of designating lead campaign organisations (subject to the negative procedure). The Minister intends for this SI to take effect as soon as possible after it is laid, so that the Electoral Commission can complete the designation process while the SI setting the date of the referendum passes through Parliament (usually, at least 21 days elapse between the laying, and coming into force, of SIs subject to the negative procedure (the 21 day rule)).[1]

The campaign or ‘referendum period’

Financial controls apply to campaigners during the referendum period (which is sometimes referred to as the campaign period). Anyone planning to spend over £10,000 must register with the Electoral Commission. During this period, they may only accept loans and donations from certain sources, and may only spend up to specified limits. Before the start of the referendum period, there are no financial controls on campaigners (but donations and loans to political parties continue to be regulated under PPERA).

There are no legal provisions that prescribe the length of the referendum period, and this period is set under regulations (subject to the affirmative procedure) that will be brought forward under the Bill. The period between the setting of the referendum date and the poll is not necessarily the same as the referendum period: the poll date and the referendum period are set by separate regulations.

The Minister has said that there will be a minimum of 10 weeks to campaign.[2] Presumably, this means he intends to table a regulation to define a 10 week referendum period at the same time as the other two regulations described above.

Purdah, or the ‘relevant period’

During the 28 days before the referendum, there are certain restrictions on the information that public bodies can publish. This period is known as the purdah period, but in legislation it is called the “relevant period”. During this period, the Government cannot use public resources to publish information that could influence the outcome of the referendum. However, Ministers are free to make a case in favour of a particular outcome in a personal or political (i.e. not official) capacity.

The Bill enables the Government to make regulations to modify the rules on what information may be published during the relevant period. These regulations must be made no later than four months before the date of the poll, and are subject to the affirmative procedure. The Government may choose not to bring forward regulations, following their defeated attempt at modifying the purdah rules during the Bill’s report stage (discussed in this Constitution Unit blog).

So, how much notice are we likely to get before the referendum?

With the Bill in its current form, we can expect the minimum period between the announcement of the poll date and the referendum to be four months if the Government decides to modify the purdah rules. If the purdah rules are not changed, we may expect this period to be 16 weeks.

While the four month period required by a change in the purdah rules will be statutory once the Bill passes, the 16 week period proposed by the Minister for Political and Constitutional Reform John Penrose is not. The legislation only requires a period for the designation of lead campaign organisations, to last as long as the Minister decides, followed by a minimum of 4 weeks to the date of the poll. So without purdah modifications, we could see a shorter notice period.

Of course, this could all change as the Bill is now making its way through the House of Lords. The next, Committee stage, debate is scheduled for 28 October.

[1] HC Deb 7 September 2015 c158

[2] HC Deb 7 September 2015 c158

Author: Elise Uberoi