Report: 23 June 2016 referendum on the UK’s membership of the European Union

On 23 June 2016 a referendum was held across the United Kingdom and Gibraltar about whether the UK should remain a member of the European Union or leave the European Union. This report looks specifically at the administration of the referendum, including the experience of voters and campaigners, the management and delivery of the poll, the regulation of campaigners at the referendum and the provision of information for voters.

We will publish further reports relating to the referendum, including a report on the analysis of campaigners’ spending and donations at the referendum and a report detailing the costs of the administration of the referendum in full, in 2017. Separate reports evaluating our public awareness campaign at the EU referendum, summarising our public opinion research following the referendum, and analysing feedback on the role of the Chief Counting Officer and the Commission supporting Counting Officers and campaigners at the referendum have also been published on our website at the same time as this report.

The Electoral Commission has specific responsibilities for the administration and regulation of referendums held under the framework of the Political Parties, Elections and Referendums Act 2000 (PPERA). The June 2016 referendum on the UK’s membership of the European Union was conducted under the PPERA framework, and the Commission was therefore responsible for:

• commenting on the intelligibility of the referendum question proposed by the UK Government
• registering organisations or individuals who wanted to campaign in the referendum (known as ‘permitted participants’)
• monitoring spending on referendum campaigning, in line with the referendum spending limits imposed by PPERA
• considering appointing organisations as the lead campaigners or ‘designated organisations’ for each referendum outcome
• ensuring that designated organisations (if appointed) had access to certain assistance
• reporting on referendum campaign spending
• reporting on the administration of the referendum

The Chair of the Commission was the Chief Counting Officer (CCO). She was responsible for the conduct of the referendum and for ensuring the accuracy of the overall result. Her duties included certifying and declaring the total number of ballots counted and the total number of votes cast in favour of each answer to the question in the referendum.

The Electoral Commission’s key objectives for referendums are that:

• They should be well run and produce results that are accepted; and
• There should be integrity and transparency of campaign funding and expenditure.

A total of 46,500,001 people were registered to vote in the referendum and 33,577,342 votes were cast, representing a turnout of 72.2%. Except for the Scottish Independence Referendum in September 2014, this was the highest turnout since the 1992 UK Parliamentary general election (UKPGE).

The outcome of the referendum was:

• 16,141,241 people (48.1% of all voters) voted to remain a member of the European Union
• 17,410,742 people (51.9% of all voters) voted to leave the European Union
• There were 25,359 rejected ballot papers.

More than 8.5 million postal votes were issued for the referendum. This represents 18.4% of the UK electorate, the highest proportion since the introduction of postal voting on demand in Great Britain in 2001. Almost 26.3 million votes were cast inperson at polling stations.

As in previous years, turnout was higher among postal voters than in- person voters: 87.6% compared to 69.2%. Postal votes made up 21.7% of the total votes cast, slightly more than at the 2015 UKPGE when they made up 20.5%.

Evidence from our public opinion research with voters shows that they had a positive view of the EU referendum process, with 77% being very or fairly confident that the referendum was well run.

People were also satisfied with the process of registering to vote (87% said they were generally satisfied). People remain highly satisfied with the procedures for voting in the referendum, whether in person at a polling station (97%) or by post (99%).

People also said that they had enough information to participate in the referendum, with 85% saying that it was very or fairly easy to access information about how to cast their vote, with a similar proportion (82%) saying the same in relation to what the referendum was for. The majority felt that they had enough information to make an informed decision on how to vote in it (62% agreed, compared with 28% who disagreed).

Despite this, we received more than 1,000 complaints from the public about the content of campaign material. Our public opinion research asked whether respondents thought that the conduct of the referendum campaigns was fair and balanced. Just over half of respondents (52%) disagreed with this statement with 34% disagreeing strongly. By comparison 34% agreed with the statement that the conduct of the campaigns was fair and balanced – only 12% agreed strongly.

The main reasons given for thinking that the conduct of the campaign was not fair and balanced were because they believed it was one-sided/unbalanced/biased/partial (31%) and the information was inaccurate and misleading (31%).

People were less likely to agree that the spending and funding of political parties, candidates and other campaigning organisations is open and transparent – 44% either disagreed or tended to disagree. On the other hand, people were more likely to agree that the authorities would take appropriate actions if political parties or campaigners are caught breaking the rules (61% agreed, compared with 23% who disagreed). However, it should be noted that this survey was conducted shortly after the referendum and therefore before reports of referendum campaigners’ spending are due to be submitted and published by the Commission. 

A number of changes and improvements were made to the regulatory controls for the EU referendum. These were included in the specific referendum legislation and associated Regulations rather than an updated version of the standard PPERA rules.

To provide additional clarity the UK Government should establish a clear standard legal framework for the conduct and regulation of future referendums. This should include making necessary amendments to PPERA now, together with a generic Order for the conduct of referendums. These measures would remove ambiguity over the detailed rules for the conduct of referendums each time one of these polls is called.

We reiterate our support for the Law Commissions’ recommendations that primary legislation governing electoral registers, entitlement to absent voting, core polling rules and electoral offences should be expressed to extend to national referendums where appropriate, and that secondary legislation should set out the detailed conduct rules governing national referendums (mirroring that governing elections, save for necessary modifications).

Campaigners at the EU referendum were subject to the PPERA regulatory framework which places limitations on spending by campaigners and provides transparency about sources of funding. Some of the PPERA controls were expanded and updated through the EU Referendum Act. We advised the UK Government and Parliament on developing some of these improvements. As for previous PPERA referendums, these changes were included in the specific referendum legislation and associated Regulations rather than updating the standard PPERA rules. We recommend that the changes should be incorporated into PPERA where appropriate, so that they apply for all future referendums.

This referendum saw the highest number of registered campaigners compared to previous referendums held in the UK, including established organisations and political parties, as well as newly-established campaigners. Before and during the referendum period, we identified and monitored campaigns, and provided outreach, advice and training to ensure campaigners knew how to comply with the rules. We made particular efforts to work closely with campaigners to prevent noncompliance, including proactively regulating potential breaches of the rules in ‘real time’ during the referendum campaign.

We also published details of campaigners’ donations to allow scrutiny by voters and the media right up to the poll, and will be publishing the campaigners’ spending returns in due course. In this report, we have considered the immediate regulatory issues arising from the referendum and feedback received from campaigners. We will issue a 
further report in spring 2017 focusing on the spending and donation returns that campaigners are required to submit to us before the statutory deadlines in September and December 2016. That report will also include information on the use of our investigatory and sanctioning powers at the referendum.

The Commission has a statutory responsibility to appoint lead campaigners for each side of a UK-wide referendum, if suitable applicants are forthcoming. The designation process for the EU referendum was unprecedented in terms of there being high profile, well-funded, competent applicants competing for the same outcome. It was therefore the first time that the statutory test of ‘representing to the great extent’ was put to the test with competing applications.

In this report, we particularly note the current lack of clear and meaningful controls on the activities of governments and other publicly funded bodies (not least the lack of any sanctions for breaches). These deficiencies have the potential to undermine voters’ trust in the integrity of referendum controls and, in the most serious cases, undermine confidence in referendum results. We therefore recommend that the legal restrictions known as section 125 should be re-visited and that the enforcement of the s125 restrictions should be clarified. There should be greater consistency between the expectations placed on public bodies and those set out for campaigners during a referendum period.

Recommendation 1: The UK Government should establish a clear standard legal framework for the conduct and regulation of future referendums

We recommend that important changes which have been applied to the legal framework for recent referendums (including in particular the role of Regional Counting Officers, the requirement for referendum campaigners to report donations during the pre-poll period and rules for campaigners working together) should be incorporated in PPERA to ensure that they will apply for all future referendums. The UK Government should introduce legislation to make these amendments to PPERA now, rather than waiting until legislation is required for another future referendum.

We also recommend that the UK Government should use the powers provided to the Secretary of State in Section 129 of PPERA to make an Order providing the detailed conduct rules for the administration of any future referendum poll. The UK Government should introduce this legislation now, rather than waiting until legislation is required for another future referendum.

We reiterate our support for the Law Commissions’ recommendations that primary legislation governing electoral registers, entitlement to absent voting, core polling rules and electoral offences should be expressed to extend to national referendums where appropriate, and that secondary legislation should set out the detailed conduct rules governing national referendums (mirroring that governing elections, save for necessary modifications).

Recommendation 2: Referendum legislation should be clear at least six months before it is required to be implemented or complied with

The UK Government should manage the development and approval of legislation for future referendums (including any secondary legislation containing detailed rules for the administration of the referendum poll and regulatory controls) so that it is clear at least six months before it is required to be implemented or complied with by campaigners or electoral administrators.

This means that:

• 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 should be clear at least six months before polling day.

Recommendation 3: Referendums should not normally be held on the same day as other significant or scheduled polls

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.

While this remains our view, we believe that the starting assumption for Governments and legislatures should be that referendums are not normally held on the same day as other significant or scheduled polls. In particular, referendums on significant constitutional questions, where political parties and other campaigners are likely to be working more closely together, should never be held on the same day as other scheduled polls.

UK legislatures scrutinising proposals to hold any future referendum on the same day as other significant or scheduled polls should ensure they are satisfied that voters and campaigners will be able to participate fully in both the referendum and the other polls, and that electoral administrators can deliver both sets of polls. 

Recommendation 4: Any Government considering providing funding directly to EROs for public awareness ahead of a future referendum or scheduled polls should consult EROs and the Electoral Commission in sufficient time to ensure that effective plans for local and national activities can be developed and implemented.

Where any Government plans to give grants to EROs for public awareness work to encourage electoral registration ahead of future polls, it should publish its proposals and consult EROs and the Electoral Commission on its proposals at least six months in advance of polling day.

Not only does this allow reasonable time to plan advertising and to organise the logistics of amending and supplying advertising material to take place, but it means that better value-for-money can be achieved when local authorities book advertising space.

Booking advertising space at short notice not only results in a cost premium, but means that availability – particularly with regards to outdoor advertising – can be extremely limited.

Short or non-existent lead times can result in advertising which is both more expensive and less effective.

Recommendation 5: Governments should make use of all available owned channels to promote voter registration ahead of any major poll.

Ahead of the EU referendum, the UK Government mobilised its departments and associated organisations to make use of each and every available communications
channel, platform, media space and real estate to drive voter registration ahead of the deadline.

This provided the campaign with unprecedented visual coverage across the country and reached millions of people for no capital expenditure. Now that it is clear what can be achieved, this should become standard practice for any Government ahead of each scheduled electoral event.

Recommendation 6: Northern Ireland should be designated as an electoral region for future UK-wide referendums, with the Chief Electoral Officer appointed as a Regional Counting Officer

For future UK-wide referendums, Northern Ireland should be designated as a referendum region with the Chief Electoral Officer appointed as Regional Counting Officer responsible for coordinating the delivery of the poll in line with the other eleven electoral regions in the UK. Voting areas within Northern Ireland should be specified in referendum legislation, in the same way as for other electoral regions elsewhere in the UK.

The UK Government should ensure that legislation for any future UK-wide referendum (including legislation amending PPERA, as recommended above in Recommendation 1 of this report) designates Northern Ireland as an electoral region with the Chief Electoral Officer appointed as a Regional Counting Officer.

Recommendation 7: The capacity of the UK Government’s online voter registration website should be tested to ensure it can cope with significant volumes of applications close to the deadline ahead of future scheduled polls

The UK Government should publish, as quickly as possible, the results of the independent review and investigation into what caused the online voter registration website to fail close to the registration deadline, and outline what measures have been put in place since to ensure that the website is able to cope with significantly high volumes of traffic.

The review, and the Government’s plans for ensuring that the website does not fail in similar circumstances, should be published no later than 4 November 2016, six months before the next set of scheduled polls in May 2017. 

Recommendation 8: Electors should be able to check online whether they are correctly registered to vote

Providing a way for electors to check their registration status at the beginning of the online registration application process would reduce the action required by voters to keep their register entry up to date, and would also reduce the impact on EROs of processing duplicate applications.

The UK Government should develop an online service to allow people to check whether they are already correctly registered to vote before they complete a new application to register. Any such service would need to carefully manage and protect voters’ personal information.

Recommendation 9: Access to the voting process should be improved for overseas electors

We will continue to work with the UK Government and Returning Officers or Counting Officers to identify practical steps which could be taken to improve access to the voting process for overseas electors at the next scheduled poll where they are entitled to vote, including:

• Ensuring that all Returning Officers or Counting Officers include the correct postage on postal ballot packs for overseas electors, so that they can be delivered to voters and returned as quickly as possible before polling day, including increasing the funding provided by the UK Government to Returning Officers or Counting Officers for this purpose to allow them to use the Royal Mail International Business Response Service.
• Explaining the practical implications of different voting methods (such as postal voting or appointing a proxy) for overseas electors, particularly if they are making an application during the last month before polling day, including on the www.gov.uk/register-to-vote website. 

We will work with the UK Government and Returning Officers to develop workable and effective proposals, which could be included in the proposed Votes for Life Bill if legislation is required, to make it easier for overseas electors to cast their votes in time to be counted at elections. We will also continue our work with the Electoral
Coordination and Advisory Board to consider how technology might be introduced into a wider range of election activity.

Recommendation 10: Those eligible to register as a referendum campaigner should be the same as those eligible to register as non-party campaigners at elections

We recommend that the list of individuals and bodies eligible to register as a referendum campaigner is extended to mirror the list of eligible non-party campaigners under PPERA. 

Recommendation 11: The responsible person should be required to sign the application to register as a referendum campaigner, and be barred from being the responsible person for any other registered referendum campaigner at the same time

We recommend that the person named as the responsible person should be required to sign the application for registration as a referendum campaigner and that the same person should not be able to be the responsible person for more than one registered referendum campaigner.

Recommendation 12: The Commission should be able to reject applications to register certain referendum campaign group names from unincorporated associations

We recommend that the Commission should be able to reject an application for registration as a referendum campaigner from an unincorporated association whose name, in the Commission’s view, is:

• obscene or offensive or which, if published, would be likely to amount to the commission of an offence; or
• the same or similar to that of an already registered referendum campaigner, registered political party or recognised third party.

Recommendation 13: Unincorporated associations should be required to provide details of their membership as part of their application to register as a referendum campaigner

We recommend that the registration requirements for unincorporated associations that register as a referendum campaigner should mirror the registration requirements for unincorporated associations that register as a recognised third party at elections. 

Recommendation 14: Designation of lead campaigners should take place before the start of the referendum period; alternatively the referendum period should be extended

We recommend that, where the legislative timetable allows, the designation of lead campaigners should take place shortly before, rather than during the first six weeks of, the referendum period and that the deadline for applications should be set at 12pm (noon) on the closing day of the application period.

However, if circumstances mean that the legislative timetable is such that predesignation 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 15: The UK Government should consult on options for redrafting section 125 PPERA to clarify the nature, scope and enforcement of the restrictions

Section 125 of PPERA should be significantly redrafted to clarify the nature and scope of the restriction on activities by Governments and other publicly funded bodies during the referendum period. It should be clear which activities are restricted, and whether there are any specific exemptions; it should be clear when the restrictions apply; and it should be clear who is responsible for enforcing the restrictions, and what the penalties would be for any breach of the restrictions.

The UK Government should consult on options for redrafting section 125 of PPERA, with a view to introducing amending legislation as soon as practicable, sufficiently ahead of any specific legislation for a future referendum.

We have also published reports about:

• an independent survey of electoral administrators (PDF)
• an independent survey of registered campaigners (PDF)
• feedback on the international observers’ scheme run by the Electoral Commission (PDF)