Richard North, 31/01/2016  

Picked up in Booker's column this weekend is a sinister and almost entirely unnoticed twist to the European Union Referendum Act, which was given Royal Assent just before Christmas. This relates to the timing of the Referendum.

As it stands, we have argued that there must be a ten-month period between the passing of the administrative regulations for the referendum (yet to be complete) and the holding of the poll. This ten months comprises three discrete periods: the six-month gap, six weeks to pick the lead campaigners and then ten weeks for the official campaign.

Originally, the Political Parties, Elections and Referendums Act 2000 (PPERA) set out the minimum period for a referendum campaign, and the component parts of the covering period known as the "referendum period".

Under this Act, the referendum period starts with the announcement of the date of the poll and ends with the poll itself. But PPERA also allows the first four weeks is taken up with applications for designated lead campaigners, with another two weeks allowed for the Electoral Commission to makes the selections, taking six weeks in all.

The Act then specifies (S. 103) that the date of the poll "shall not be earlier than 28 days" after the end of the designation period, making the referendum period a minimum of ten weeks. However, six of those weeks is actually taken up with designation, the official lead campaigners can be left with as little as four weeks to carry out campaigning.

Under the Referendum Act, though, we saw an amendment (Schedule 1, 12) which allowed the six-week designation process to be separated from referendum period, set up by Regulations before the poll date is announced. Yet, under Schedule 1, the referendum period must still be ten weeks. That gives us our 16 weeks.

Then, communicating with the Electoral Commission over the week, they have also made it very plain that they wish this six-months gap to stand. This is something they've made very clear to the media, so journalists have no excuse for ignoring it.

Furthermore, it transpires that this six-month gap is by no means specific to referendums, but is also recommended for general elections and has, so far, been honoured by successive governments.

On this basis, we've been assuming that there must be that ten months before the referendum poll can be held, with the clock starting to tick after the final administrative regulations are published. Since we have not seen these yet, it does not seem possible that we can have a June referendum (or even one in September).

However, as the Electoral Commission (EC) stresses, the six-month gap is a recommendation – not a legal requirement. Nevertheless, under normal circumstances, a government is obliged to follow the recommendations of their statutory advisers (which includes the EC). And in some cases, they can be enforced by way of judicial review.

In this case, though, the government has chosen to trigger the designation and the poll dates by Regulations, which must be approved by Parliament. And even though this is negative assent, where Parliament does not have to do anything for the Regulations to pass, this for legal purposes is deemed to reflect the "will of Parliament". The Courts are very reluctant to intervene in this event.

By what would amount to an act of constitutional vandalism, therefore, Mr Cameron could ignore the convention that requires him to take note of his advisers' recommendations, and drop the six-month gap. But it gets worse.

With the Referendum Act amendment on the designation process, we've been assuming that the designation will necessarily be separate from the referendum period, thus lengthening the overall period from ten to sixteen weeks, or four months.

With the current timetable, this would means that Mr Cameron could do his "deal" at the February European Council and still have a few days left to sort out any loose ends. His deadline for announcing a referendum for the 23 June would sixteen weeks earlier, on 3 March.

From the Electoral Commission, though, we understand that, while the government may separate the designation process, it doesn't have to. As with the PPERA procedure, it could still fold the process into the ten-week referendum period, leaving a mere four weeks for the officially designated lead campaigners to do their work.

This means that Mr Cameron could leave it to as late as 14 April before announcing the date of the referendum, and still hold it on 23 June. That would give him time to run into the European Council on 17-18 March before reaching a deal.

Clearly, this will not give enough time for a proper campaign. And that much Mr Cameron acknowledged on 5 January when, in a Commons statement, he spoke of being "keen to get on and hold a referendum". But, he said, "We should not do it precipitately". He went on to say:
I have looked at precedents. I note that when Labour held a referendum in 1975, there was only a month between the completion of the legislation and the referendum, which was not enough time. When we had the referendum on the alternative vote in the previous Government that I led, the period was less than three months, which was also not enough. We should be looking for a period longer than that, but, believe me, by the time we get to the end of the referendum campaign, everyone will have had enough of the subject.
If Mr Cameron went against the grain, it could have catastrophic consequences for the "leave" camp. Only there is an open competition for designation being held. Thus, key functions such as preparing and sending out the referendum address, and preparing the referendum broadcasts, can only be started once the lead campaigners have been selected. By contrast, the "remainers" which have already decided on their lead.

"When people wake up to what seems to be going on", Booker writes, "there will be uproar, because this would allow only a ridiculously short time for the two chosen groups to organise their supporters, recruit donors, prepare and circulate their publicity material, arrange meetings and broadcasts, and heaven knows what else".

Booker thus asks whether Mr Cameron thinks he can get away with this. He ventures that the whole charade will be seen as so shabby and meaningless that any hope that it will have "settled the European issue for a generation" will be as empty as his cynically stitched-up little victory. 

And there one must pause for thought. Mr Cameron has been bending over backwards to be seen to be running a "fair" referendum. He conceded on the purdah question and did not argue with the Electoral Commission about changing the wording of the question.

To "steal" a victory in such the shoddy way we have outlined would be running against the trend, and contradict his on 5 January statement. If he won as a result, it would also be a Pyrrhic victory. As Booker points out, the contest would be seen to be unfair and the result would settle nothing. On balance, therefore, it looks unlikely that Mr Cameron would pull a fast one, even if legally there is nothing to stop him doing so.

Interestingly, for once, we have in Liam Halligan in the Telegraph some agreement that Mr Cameron is more likely to play a long game, and could already be signalling that a June referendum is "unlikely".

Nevertheless, with the decision entirely in the hands of one man, and the referendum already having been rigged to afford the Prime Minister maximum flexibility, an early referendum cannot totally be ruled out. My money is still on next year, but there's no such thing as a certain bet. 

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