How to fight a referendum: Hire lawyers
This is the final part of a series on how to win a referendum by William Norton, referendum agent for the successful NESNO campaign.
The UK law on referendums is a complete and utter mess. The Political Parties, Elections & Referendums Act 2000 (“PPERA”) is poorly drafted, being vague and littered with inconsistencies. At one point in the North East we had a ludicrous argument about the hire of some rooms – and the Electoral Commission wanted us to take Newcastle City Council to court so they could have a judgment which explained what that part of PPERA actually meant.
Ultimately the scale of the NESNO win (78% to 22%) allowed us to overcome these problems. In the high profile stress of a Euro referendum, however, this defective law will break down. The only remedy will be to have an expensive team of lawyers on standby for when it happens. There are two particular areas where I would expect trouble.
(a) The BBC
It’s too simplistic to say that the BBC will want a Constitution-Treaty to be passed. More accurately, they will view any referendum from a particular perspective, and their internal rules will force them to report it in this way, and this is likely to favour the Yes Campaign.
In the North East Referendum, both Yes and No Campaigns were non-party organisations. But because John Prescott put himself forward as the leading Yes spokesman, the BBC decided they had to “balance” him by interviewing only other party politicians from the opposing side. This played to Prescott’s agenda to present the referendum as a party political fight. NESNO on the other hand didn’t want politicians to represent our case because we were arguing a very anti-politician line. So obstinate were the BBC about their “balance” that they refused to allow NESNO to field spokesmen on some of their programmes and arguably also interfered in the internal affairs of UKIP.
The BBC will take a line on the “real story” of any referendum, and it will be orientated around the usual Westminster village. Whatever that line might be – Tory splits on Europe; it’s really about withdrawal from the EU; anti-treaty people are closet BNP racists – their coverage, and the people to whom they give air time, will be manipulated to reinforce this analysis. But it is not the function of the BBC to define any campaigning group or dictate who is allowed to represent them. Unfortunately, someone is going to have to take them to court to prove this rather obvious fact.
(b) The purdah
PPERA section 125 in outline prohibits government ministers, officials and public sector employees from publishing any material which might influence the outcome during a period of 28 days before the close of a referendum. This is structured as a “public duty” – not an arrestable offence. It does not apply to ministers who are acting in their private capacity as party politicians – but there is no mechanism for determining when they have crossed the line. The only enforcement and sanction for a breach of the purdah is for the minister himself to realise he has broken section 125, and apologise after the event to Parliament. The full story of how John Prescott broke the section 125 purdah in the North East Referendum is given here.
The unenforceable waffle of PPERA section 125 is the only constraint to prevent a Government from trying to rig a referendum, and no one is policing it. On the other hand, any No Campaign will be subject to 27 potential criminal offences and have the Electoral Commission on their backs every step of the way.
We all know how much New Labour respects the rule of law when that law applies to itself. Does anyone seriously doubt that if the Yes Campaign are in trouble towards the close of a Europe referendum, Young Miliband will fly off to an urgent summit and return waiving a piece of paper describing important last minute “concessions”? The minute Miliband leaves for the airport, the No Campaign should head for the High Court.
What a shame that the final detail of the UK’s relationship with the EU will probably end up being settled in a court room. Still, at least we all know we can trust the judges, eh?