Report: Scottish Independence Referendum

On 18 September 2014, the people of Scotland voted in a referendum on whether Scotland should be an independent country. In the months leading up to the day of poll Scotland was energised by the debate and the voters engaged in the discussion around the referendum question.

The question asked, to which voters were required to vote either yes or no, was:

Should Scotland be an independent country?

This is a report to the Scottish Parliament fulfilling our statutory duty to report to the Parliament, under the provisions of the Scottish Independence Referendum Act 2013 (SIRA), on the conduct of the referendum. It reviews the experience of voters, the referendum campaign and the delivery of the referendum as well as how the Electoral Commission carried out its functions under SIRA. We also report on the expenditure which we incurred in carrying out our functions. We will publish a further report on campaign spending in 2015 after the registered campaigners who spent more than £250,000 have submitted their spending returns in March 2015.

The report is informed by many sources of information and focuses on the administration of the referendum. It reflects the experience of voters based on public opinion research, as well as electoral data provided by the Chief Counting Officer (CCO), Counting Officers (COs) and Electoral Registration Officers (EROs). It also reflects the feedback and views we received from campaigners, those responsible for delivering the referendum poll, as well as other participants and observers in what was Scotland’s biggest electoral event ever. 

The referendum was well-run by the CCO and her CO and ERO colleagues because of careful planning (in part possible because of existing administrative structures in Scotland), sufficient resourcing and careful delivery of the administrative process through much hard work by all those involved.

The “Edinburgh Agreement”1  was signed between the Scottish and UK Governments on 15 October 2012. Under the Agreement, the respective Governments agreed to work together to ensure that a referendum on independence for Scotland would take place. An Order2  was subsequently made in both the Scottish and UK Parliaments under Section 30 of the Scotland Act 1998, enabling the Scottish Parliament to legislate for the referendum. SIRA, the Act subsequently passed by the Scottish Parliament, provided for the roles undertaken by the various bodies in Scotland, with regard to the referendum, to be slightly different to a referendum run under the Political Parties, Elections and Referendums Act 2000 (PPERA). SIRA gave the following roles which are outlined below.

The Chief Counting Officer

SIRA required Scottish Ministers to appoint the Convener of the Electoral Management Board for Scotland (EMB), Mary Pitcaithly, as CCO for the referendum. She appointed Sue Bruce, Chief Executive of The City of Edinburgh Council, as Deputy Chief Counting Officer. The CCO also appointed COs for each of the 32 local government areas in Scotland, who in turn were entitled to appoint deputies to carry out some or all of their functions as appropriate. The CCO was responsible for:

• The proper and effective conduct of the referendum, including the conduct of the poll and the counting of votes.
• The appointment of COs for each of the 32 local government areas.
• The provision of guidance and, where appropriate, direction to COs and EROs on the exercise of their functions.
• Encouraging participation in the referendum.
• Certifying the overall outcome of the referendum in Scotland.

The Electoral Commission

The Electoral Commission was responsible for:

• Advising, registering and regulating campaigners in the referendum where appropriate, including in relation to campaign spending and donations.
• Assessing applications from campaign groups wishing to be appointed as the designated organisation campaigning for each referendum outcome.
• Promoting public awareness in relation to the referendum.
• Administering an accreditation scheme for individuals and organisations wishing to act as observers at key proceedings in relation to the referendum, including the preparation of a Code of Practice specific to the event.
• Reporting on the conduct of the referendum
• Advising on the referendum question and campaign spending limits, before SIRA was introduced into the Scottish Parliament

Voting in the referendum commenced in late August 2014 with the dispatch of postal votes prior to polling day on 18 September 2014. Levels of voting were high and steady throughout polling day, with many polling staff experiencing queues at the door when voting opened at 7am, such was the engagement of the electorate keen to express their preference on the referendum question.

The atmosphere in polling places was reported by police, staff and observers to be good natured throughout the day. There were some reports of incidents during the campaign and on polling day but the prospect of a widespread air of intimidation, which had been raised prior to polling day, did not materialise. The count commenced shortly after the close of poll at 10pm on 18 September and continued throughout the night. The result was declared by the CCO at approximately 9am on 19 September 2014.

• There were 3,623,344 (representing 84.6% of the electorate) votes counted
• 2,001,926 people (55.25% of all voters) voted No
• 1,617,989 people, (44.65% of all voters) voted Yes

Some key statistics

• 4,283,938 registered voters for the referendum
• 109,593 16 and 17 year olds registered
• 796,835 (18.6%) postal voters
• 3,429 (0.1%) ballots rejected at the referendum count
• 5,579 polling stations within 2,608 polling places
• Maximum 800 electors per polling station
• 42 campaign groups or individuals registered with the Commission (21 campaigning for a Yes vote and 21 for a No vote)
• 2.5 million EC Voting Guides delivered to Scottish households

This report contains recommendations for the conduct of any future referendum legislated for by the Scottish Parliament on any issue. Although we are not aware of any such future plans, we consider it proper that the lessons learnt from this event are brought to the attention of the Parliament so they can be recorded and considered in the future. Some of the lessons learnt are of course also relevant to future elections for which the Parliament is responsible and they should be considered in that light.

There are also lessons that are relevant to legislation for future referendums and elections, not only in Scotland but also those held across or in other parts of the UK. Where appropriate these lessons are directed at the other legislatures across the UK, including the UK Parliament.

Following the May 2011 referendums on additional powers for the National Assembly for Wales and the Parliamentary Voting System for the House of Commons, we recommended that, for future referendums, detailed rules should be in force at least 28 weeks in advance of polling day (or by 6 March 2014 in the case of the Scottish Independence Referendum). SIRA and the Scottish Independence Referendum (Franchise) Act 2013 (the Franchise Act) were commenced on 18 December 2013 and 8 August 2013 respectively, giving clarity to all. For the Commission this meant we could provide guidance on the campaign rules nearly nine months ahead of the poll, as opposed to three months which was the case for both 2011 referendums. The CCO also had additional time to develop and provide guidance and direction on matters
relating to registration and the conduct of the poll. 

The benefit of this additional time was passed on to campaigners, EROs and COs in preparing for their respective roles at the referendum. Campaigners were able to engage constructively with the legislative process and had time to develop an understanding of the relevant guidance and rules, before they came into force. EROs and COs benefitted from sufficient time to put robust plans in place for the delivery of their responsibilities under the legislation, from targeted public awareness activity to the booking of polling places and the training of staff. 

While the provisions relating to many aspects of the referendum were commenced some nine months before the event, those relating to the franchise, contained in the franchise Act, were not. The provisions which allowed for the compiling of the Register of Young Voters were not commenced until two months before the start of the canvass of 16 and 17 year olds. In addition, similar timing considerations are also relevant when developing a public awareness strategy and political literacy initiatives, both at the national and local level, when introducing votes for 16 and 17 year olds.

We believe that the experience of legislating for the Scottish Independence Referendum provides, in the main, a model for the future development of referendum and electoral legislation. Sufficient time was allowed by the Scottish Government to consult on the proposed legislation, followed by the Scottish Parliament having sufficient time to properly scrutinise proposals and legislate, with Royal Assent for the primary pieces of legislation being in place nine months before 18 September.

We recommend that in planning for any future referendums, not only in Scotland but also those held across or in other parts of the UK, governments should aim to ensure that legislation (including any secondary legislation) is clear at least six months before it is required to be implemented or complied with by campaigners, the Chief Counting
Officer, Counting Officers or Electoral Registration Officers.

This would mean that:

• Legislation for any changes to the franchise for a referendum should be clear at least six months before EROs are due to begin any scheduled annual canvass activities.
• Legislation for the regulation of referendum campaigners should be clear at least six months before the start of the regulated referendum period.
• Legislation relating to the conduct of a referendum poll, including secondary legislation such as Fees and Charges Orders, should be clear at least six months before polling day.

The Commission’s view was, and remains, that decisions about the franchise are for the relevant Parliament to decide. Our focus in the referendum was ensuring that, as the franchise had been extended to 16 and 17 year olds, they were able to participate fully, including being registered to vote.

As noted above, the Franchise Act did not receive Royal Assent until two months before the start of the canvass of 16 and 17 year olds. While we were aware that the Scottish Government was talking with Scotland’s EROs in order to ensure the legislation was capable of being implemented in a timely manner, we would, however, have expected the legislation to be in force at least six months before the annual canvass to give EROs sufficient time to plan and effectively implement the changes. 

This will also help public awareness and political literacy initiatives, both at the national and local level, when introducing votes for 16 and 17 year olds.

We therefore recommend that, when any policy maker or legislator is considering future legislation for referendums or elections with a franchise including 16 and 17 year olds, they consider the need to ensure legislation concerning the extension of the franchise is commenced six months prior to the beginning of the canvass in order to
allow administrators to plan for the canvass and public awareness activities, including political literacy initiatives.

The “Edinburgh Agreement” required that no other referendum legislated for by the Scottish Parliament could be held on the same day as the referendum on independence for Scotland. 

The circumstances of the referendum and the campaigning tactics adopted by campaigners meant that a number of different political parties worked together to campaign for the same outcome. Both lead campaigners attracted various political parties to their cause and a large number of people who were not associated with any political party. Lots of non-party campaign groups were also established, some of whom were registered with the Commission whilst others were not.

Cross-party campaigning at referendums provides a coordinated message to voters and helps them to make an informed decision. However, had an election campaign been taking place at the same time as the referendum campaign, some parties might have been working together in one contest, whilst campaigning against each other in the other. This has the potential to be confusing for voters and to place parties in a campaign context within which it would be extremely difficult to operate. Given the intense level of campaigning in the referendum and the focus of campaigners and voters on a single issue, we believe that if an election had been held on the same day, this could have led to voter confusion.

We recommend any government introducing legislation for future referendums, not only in Scotland but also those held across or in other parts of the UK, should also publish at the same time its assessment of the implications of holding other polls on the same day. This will enable legislatures (including the Scottish Parliament and the UK Parliament) to consider the relative benefits and risks of the proposal as they scrutinise the referendum Bill.

Since its establishment in 2008, the EMB3  has supported successfully the delivery of several elections and the 2011 Referendum on Parliamentary Voting Systems. Although the EMB did not have a statutory role in the referendum on independence for Scotland, its Convener was appointed under SIRA as CCO for the referendum and it played an integral role in providing advice and support to the CCO to ensure the proper and effective conduct of the poll. 

The current legislative and administrative structures for electoral matters in Scotland are part-reserved and part-devolved. Although we have recommended that the statutory role of the EMB be expanded to include elections to the Scottish, UK and European Parliaments, to date this has not happened. It remains the case that its only statutory role relates to local government elections, though it continues to undertake roles in parliamentary elections on a non-statutory basis. The EMB has again demonstrated the
added-value it brings to electoral events in Scotland and is recognised by stakeholders throughout the electoral community as providing effective leadership as it seeks to develop consistency of approach. In our view, the future statutory electoral framework for Scotland should include the EMB as it supports the provision of efficient and effective electoral administrative processes in the interests of the voter.

Following the referendum, the Smith Commission on further devolution of powers to the Scottish Parliament was established and presented its proposals, referred to as ‘the Smith Commission Agreement’, on 27 November 2014. This proposed that the Scottish Parliament be given powers over how its members are elected, together with powers to extend the franchise to 16 and 17 year olds, allowing them to vote in the 2016 Scottish Parliamentary elections. The Parliament would also be given additional powers in relation to local government elections. 

While ‘the Smith Commission Agreement’ envisages that the Electoral Commission will continue to operate on a UK-wide basis, it proposes that the Scottish Parliament will have competence over the functions of the Electoral Commission in relation to Scottish Parliamentary elections and local government elections in Scotland. The Electoral Commission would report to the UK Parliament in relation to UK and European Parliamentary elections and to the Scottish Parliament for Scottish Parliamentary and local government elections. 

The Commission has written to both the Scottish and UK Governments offering our assistance as they take forward the work needed to produce draft clauses implementing these proposals.

Given the continuing development of the EMB and the need to secure its long-term funding and statutory arrangements, the Electoral Commission believes that ‘the Smith Commission Agreement’ presents an opportunity to secure the future restructuring of electoral matters in Scotland with the EMB playing an important role, delivering services which are in the interests of the voter. 

We recommend that the EMB’s statutory remit is extended to Scottish, UK and European Parliamentary elections and that the Convener is given a power of direction at these elections. We also recommend that the long-term funding and legal status of the EMB be secured and clarified so that it can undertake fully the tasks it was envisioned it would carry out when the idea of the Board was recommended and accepted by governments in 2008.

In making the above recommendations, the Commission would re-state its comment in the 2008 report ‘Electoral Administration in Scotland’ that it recognises that, as the EMB develops, this would impact upon our work. We said we would review our work in that light, which we continue to do.

SIRA contained a number of changes to the rules that applied at the 2011 referendums on increased powers for the National Assembly for Wales and the UK-wide referendum on UK Parliamentary Voting Systems. These changes were intended to clarify aspects of the regulatory controls, reduce burdens on those that wished to campaign, and ensure that voters had access to information to enable them to make an informed decision when they cast their vote.

Overall, we believe that the regulatory controls that applied at the referendum worked well. There are, however, lessons that can be learnt for further refinement of the legal framework and for government spending during the referendum period.

Recommendation 1: Timing of legislation for future referendums

When considering proposals for any future referendum on any issue, not only in Scotland but also those held across or in other parts of the UK, governments should ensure that the timetable for developing and introducing all legislation provides sufficient opportunity for legislatures (including the Scottish Parliament and the UK Parliament where appropriate) to properly scrutinise those proposals, including considering the Electoral Commission’s advice about the wording of the proposed referendum question.

Governments should also acknowledge the importance of allowing sufficient time for campaigners, the Chief Counting Officer and Counting Officers, Electoral Registration Officers and the Electoral Commission to prepare for their respective roles in any referendum. In particular, legislation should be clear in sufficient time to allow robust and detailed guidance to be developed and provided to campaigners, Electoral Registration Officers or Counting Officers. 

We recommend that in planning for any future referendums, not only in Scotland but also those held across or in other parts of the UK, governments should aim to ensure that legislation (including any secondary legislation) is clear at least six months before it is required to be implemented or complied with by campaigners, the Chief Counting Officer, Counting Officers or Electoral Registration Officers. This would mean that:

• Legislation for any changes to the franchise for a referendum should be clear at least six months before EROs are due to begin any scheduled annual canvass activities.
• Legislation for the regulation of referendum campaigners should be clear at least six months before the start of the regulated referendum period.
• Legislation relating to the conduct of a referendum poll, including secondary legislation such as Fees and Charges Orders, should be clear at least six months before polling day.

Recommendation 2: Extending the franchise to 16 and 17 year olds

We recommend that, when any policy maker or legislator is considering future legislation for referendums or elections with a franchise including 16 and 17 year olds, they consider the need to ensure legislation concerning the extension of the franchise is commenced six months prior to the beginning of the canvass in order to allow administrators to plan, both for the canvass and for related public awareness activities, including political literacy initiatives. 

Recommendation 3: Timing of polling day for future referendums

We have previously recommended that any proposals to hold a referendum poll on the same day as the poll for other electoral events should be considered on a case-by-case basis and this remains our view. 

The priority in considering any such proposals has always been that voters and campaigners should be able to understand and easily participate in all of the polls, and that those responsible for running the polls are able to do so effectively. Governments and legislatures should take into account the anticipated level of public interest and potential for cross-party campaigning when considering proposals for the timing of any future referendum. Where significant cross-party campaigning for a future high-profile referendum is likely (such as, for example, a referendum on the UK’s membership of the European Union), we would not expect the poll to be held on the same day as
another set of polls. This would help ensure voters and campaigners are able to easily participate in the referendum and minimise the risk of voter confusion.

Any government introducing legislation for future referendums, not only in Scotland but also those held across or in other parts of the UK, should also publish at the same time its assessment of the implications of holding other polls on the same day. This will enable legislatures (including the Scottish Parliament and the UK Parliament) to consider the relative benefits and risks of the proposal as they scrutinise the referendum Bill.

Recommendation 4: Public awareness activity undertaken by the CCO and COs 

The public awareness activity undertaken by the CCO and COs benefitted voters through the provision of timely and localised information about their vote. In order to enable the CCO and COs to undertake activity to promote voter registration and voter information, and following a Commission recommendation from the 2011 referendums, the referendum legislation specifically exempted the CCO and COs from the ban on public bodies producing information relating to the referendum in the last 28 days leading to
polling day. This exemption had important benefits for voters and we recommend that it be applied at any future referendums.

Recommendation 5: Information for voters on count procedures 

The Commission and others involved in the provision of public information regarding referendums and elections in Scotland and the rest of the UK need to address the issue of how we make the public more aware of count procedures.

Recommendation 6: Issuing ballot papers to voters queuing at polling stations 

Legislation for future referendums, not only in Scotland but elsewhere in the UK, should ensure that eligible electors who are in the queue at their polling station at the close of poll are issued with a ballot paper and allowed to vote.

Recommendation 7: Eligibility to register as a referendum campaigner and donate

The legislation for future referendums, not only in Scotland but also those held across or in other parts of the UK, should ensure that the list of individuals and bodies eligible to register as a referendum campaigner and to donate to other campaigners is extended to mirror the list of eligible registered non-party campaigners under PPERA.

Recommendation 8: Responsible person

The legislation for future referendums, not only in Scotland but also those held across or in other parts of the UK, should ensure that the same person is not able to be the responsible person for more than one registered campaigner; and, in addition that:

• the person named as the responsible person is required to sign the application for registration as a campaigner, and
• for non-PPERA referendums, s.25 PPERA is replicated so that a political party’s campaigns officer can take on the Treasurer’s role of responsible person. 

Recommendation 9: Grounds for rejecting applications to register as a referendum campaigner

The legislation for future referendums, not only in Scotland but also those held across or in other parts of the UK, should ensure that the Commission is not required to accept a declaration for registration as a referendum campaigner if the campaigner proposes a registered name which:

• Would be the same as that of a permitted participant which is already registered.
• Is obscene or offensive.
• Includes words the publication of which would be likely to amount to the commission of an offence.
• Includes any prohibited word or expression. 

Recommendation 10: Approach to designation

We would welcome the opportunity to work with relevant governments, not only in Scotland but also in other parts of the UK, when they are considering the legislation for future referendums, to consider the implications of enabling the Commission to designate one side of the referendum debate rather than requiring designation to be on both sides or not at all (as is required under PPERA).

Recommendation 11: Early designation and the length of the referendum period

The legislation for future referendums, not only in Scotland but also those held across or in other parts of the UK, should ensure that designation is able to take place shortly before, rather than during the first six weeks of, the referendum period. We also recommend that consideration be given to the benefits of early designation when setting the legislative timetable.

If circumstances mean that the legislative timetable is such that early designation is not possible, then our 2011 recommendation to extend the length of the referendum period to at least 16 weeks should be adopted. This would go some way to giving designated lead campaign groups more time to plan and use the benefits available.

Recommendation 12: Pre-poll reporting

The legislation for future referendums, not only in Scotland but also those held across or in other parts of the UK, should ensure that pre-poll reporting of donations and loans over £7,500 received by registered campaigners (except political parties) for referendum purposes is again included as a reporting requirement.

Recommendation 13: Grants to designated lead campaigners

It is important that relevant governments, not only in Scotland but also those in other parts of the UK, give careful consideration to the principles of ‘core funding’ raised by the Committee on Standards in Public Life in its 1998 report when considering whether a publicly funded grant should be made available.

For future non-PPERA referendums, relevant governments, not only in Scotland but also those in other parts of the UK, should be aware that the Commission may wish to comment on whether a grant should be available to designated lead campaigners.

Recommendation 14: Imprints

We continue to recommend that there should be proportionate imprint requirements on non-printed material at referendums and elections across the UK. However, we would welcome the opportunity to work with relevant governments, not only in Scotland but also in other parts of the UK, when they are considering future legislation for referendums, to ensure that the imprint rules strike the right balance between ensuring there is transparency about who is campaigning and proportionate and modern regulatory requirements.

Recommendation 15: Restrictions on the publication of promotional material by central and local government

Relevant governments, not only in Scotland but also those in other parts of the UK, should publicly commit to and refrain from, in practise, any paid advertising, including the delivery of booklets to households, which promotes a particular referendum outcome for the full duration of the referendum period. 

We agree in principle that a period of 28-days is an adequate duration for the restrictions on the publication of other promotional material by central and local government. However, to mitigate the risks of the relatively short period, it is important that relevant governments give careful consideration to the impact on the campaign and voters’ trust in the rules of any referendum related information they publish before the restrictions come into force. It is also important that there is a clear explanation of the rules and how to comply with them for relevant public bodies to follow during that period.

Recommendation 16: Regulating campaign arguments

We invite relevant governments, not only in Scotland but also those in other parts of the UK to restate for each future referendum that a role in regulating the campaign arguments is inappropriate for the Commission, or any other organisation tasked with regulating the referendum.

Recommendation 17: Use of the mini-count approach to the verification and counting of votes

Breaking down the verification and counting of votes into areas smaller than the total electoral or referendum area is a particularly effective method in achieving an accurate, timeous result with clear audit trails. Consequently, COs and returning officers in Scotland and elsewhere in the UK should consider utilising this approach when planning their verification and count at future electoral events.

Recommendation 18: National recounts

The key factor in delivering a single national result for future any referendums is that high quality counts are undertaken in each counting area, so that confidence and trust in the overall result is achieved, as was the case at the independence referendum. 

We do not believe that it would be necessary for legislation for any future referendum on any issue, not only in Scotland but also those held across or in other parts of the UK, to provide powers for the Chief Counting Officer to direct national recounts to be carried out across all counting areas. Legislatures scrutinising future referendum legislation will want to consider the powers provided to Counting Officers for recounts at the local counting area level.

Recommendation 19: Prohibition on appointment of staff previously involved in campaigning

The legislation for future referendums, not only in Scotland but also those held across or in other parts of the UK, should ensure that the prohibition on COs appointing people as polling station staff who have been involved in the campaigns for either outcome in the referendum, is extended to explicitly cover people employed by the CO at the verification and counting of votes.

Recommendation 20: Appointment of counting agents

Limitations on the number of counting agents who can be appointed at count centres mean that in some circumstances agents of any given registered campaigner may be unable to properly scrutinise the conduct of the counting of votes. Although a restriction on the number of counting agents who can be appointed is necessary for logistical reasons it may be that changes are required to the way in which the representation of each referendum outcome is calculated. For example, it may be that a system which prioritises the appointment of an appropriate number of counting agents acting on behalf of the designated lead campaigners would be more effective. 

During the course of the referendum the Commission drew the attention of both lead campaigners and several other campaign organisations to the limitations on numbers of counting agents to ensure they were aware of a potential issue before it arose. For future referendum legislation in Scotland and elsewhere legislators may wish to consider if large numbers of registered campaigners are anticipated.  

Recommendation 21: Instructions to voters on the folding of ballot papers and the Unique Identifying Number

SIRA required and the guidance issued by the CCO highlighted the requirement of polling station staff to inform voters to fold the ballot paper after they had made their mark and then show the Unique Identifying Number to the Presiding Officer before placing the ballot paper in the box. Counting Officers and Returning Officers at future referendums and elections in Scotland and elsewhere in the UK should ensure that at training sessions for polling station staff the requirements for how the ballots are to be presented prior to their deposit in the ballot box are be emphasised to staff.

Recommendation 22: The future of the Electoral Management Board for Scotland

Given the continuing development of the EMB and the need to secure its long-term funding and statutory arrangements, the Smith Commission Agreement presents an opportunity to secure the future re-structuring of electoral matters in Scotland with the EMB playing an important role, delivering services which are in the interests of the voter. We would therefore recommend:

• That the EMB’s statutory remit is extended to all parliamentary elections and that the Convener is given a power of direction at these elections.
• The long term funding and legal status of the EMB must also be secured and clarified so that it can undertake fully the tasks it was envisioned it would carry out when the idea of a Board was recommended and accepted by governments in 2008. 

Recommendation 23: Integrity administrative issues: a single point of contact

The Commission, while recognising the complexity of having many more police forces across the whole of the UK and their independence in operational terms, recommends that for future referendums at the UK level, Police Scotland, the Association of Chief Police Officers and the Police Service of Northern Ireland explore the possibility of establishing a single command structure to co-ordinate where necessary at UK level.