Referendum rules must be updated before a second vote on EU, warns interim head of Electoral Commission

Rules underpinning referendums must be updated before a second vote on the European Union can take place, the interim head of the Electoral Commission has warned.

In an interview with Holyrood’s sister title, The House magazine, Bob Posner suggested it would not be “sensible” for Parliament to use the same rules and “paste them across” without making necessary adjustments.

The head of the elections watchdog argued changes were needed to rules governing social media campaigning and reporting of financial spending – and called for the Electoral Commission to be given greater powers to be able to fine parties and campaigns by up to “hundreds of thousands” of pounds.

Posner also confirmed the Electoral Commission is contingency planning for a second referendum and for the European Parliament elections later this year, should there be an extension to Article 50.

And Posner revealed the watchdog would work with MPs to ensure a referendum campaigning period was carried out “in the tightest possible timescale”.

When asked if he would be concerned that a referendum was held without changes made to electoral law, Posner told The House: “I think we would have to be concerned because we would want there to be learning from the previous event, what would raise people’s confidence, and it’s difficult to think that it would be sensible for parliament simply to take the rules from the last referendum and paste them across."

Posner, who took over from Claire Bassett as chief executive of the Electoral Commission on an interim basis at the end of last year, said electoral law should be updated to cover digital campaigning.

“One obvious thing is that when people receive political campaigning messages online, through social media or whatever, it should be clear who’s trying to influence them,” he said.

“They should be able to look and see well, this was paid for by so and so and published by so and so, which is what you get with printed material under the current law. We think the print rules should apply equally to digital, so the public can understand who’s trying to influence them and they can make their own judgments.”

He argued that updates to the rules could be done as part of a referendum bill that would have to go through parliament.

“We would want much speedier reporting after the event of all the financial spending. And we’d also want more transparency during the event. We want the ability for us to actually go into campaigns and get hold of their financial information during the event.

“These are all completely normal things in other regulatory fields now."

The watchdog currently has a £20,000 cap on fines it can issue per offence. Posner argued that if the fines remain too low, then “you’re going to get more cases in front of the criminal courts”.

When asked what he thought the limit should be, Posner pointed to the Information Commissioner’s Office, which can issue fines worth more than £500,000.

“We’ve never put a figure on it because that’s of course for parliament,” he said.

“But we do draw parallels, it is interesting to look across the Information Commissioner where their original cap was about £50,000, parliament increased that to £500,000 and they’ve now increased that further to percentages of turnover of businesses and so forth.

“So, you’re talking about in the hundreds of thousands of pounds. I think that’s right. I don’t think we as a body would be fining that regularly in any way at all. It would be reserved for the things that really matter and it will be a deterrent.”

He added: “If the fines remain too low, and I think they’re too low at the moment, then the result is you’re going to get more cases in front of the criminal courts which is harsh and difficult for people.”

The UK Government has briefed that a new EU referendum could take more than a year to facilitate. A fresh vote would require legislation specifying the question, timing and other matters to be passed by parliament, a process that took seven months ahead of the 2016 vote.

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While the Electoral Commission could have no influence on the timing of the legislative stage, Posner said the watchdog could ensure the regulated referendum period lasted for 10 weeks.

“If parliament thought this needs to be held quickly, the bits we need to do we would obviously work with parliament to make sure we did that in the tightest possible timescale,” he said.

With the European Parliament elections due to take place in July of this year, Mr Posner confirmed that the Electoral Commission are preparing to hold the votes if Article 50 is extended beyond the deadline.

“The Commission always has contingency plans for unscheduled electoral events as well as scheduled electoral events. That’s the nature of our politics and always has been,” he said.

“So, of course, we always have contingency plans that there could be a snap election and so forth. Again, the European Parliament elections – it is not impossible, though it’s not currently the policy that they’re going to happen, and they may well not happen – of course, we have contingency planning for that. Of course, if Parliament called for it to happen, we would make sure we could deliver it with the returning officers.”