European Union Referendum Act 2015

Origin

On 1 January 1973 the United Kingdom and Gibraltar joined what was then known as the European Economic Community (the Common Market), under terms negotiated by the then Conservative Prime Minister Edward Heath. In accordance with British constitutional convention, specifically that of parliamentary sovereignty, accession was not subject to approval by referendum. Both the Conservative Party and the Labour Party were divided over the issue, and the European Communities Act 1972 was passed due to sufficient Labour abstentions to counteract the number of rebel Tories. In the run-up to the UK General Election February 1974, the Labour Party manifesto promised a Referendum 'on renegotiated terms', which its leader, Harold Wilson, hoped would end the division of his party. However the election proved indecisive and marked the end of Heath's premiership as Prime Minister and Wilson was forced to call a second election later in the year. After the UK General Election October 1974, the Labour Party formed a minority administration and held the referendum on continued membership the following year, which was approved by 67% of voters.

For a few years the issue was largely settled but, with the approval by Parliament of the Single European Act, the Maastricht Treaty and the Lisbon Treaty, there were calls from eurosceptic Members of Parliament for a new UK referendum on continued membership. Conservative Party leader David Cameron announced in January 2013, in what became known as "The Bloomberg speech", a proposal to undertake a renegotiation of the terms of the UK's membership of the EU, and subsequently to hold a UK referendum on its membership of the Union. However, at the time of Cameron's speech, the Conservative Party was in Coalition government with the Liberal Democrats who, along with the Labour Party, were at the time opposed to any new referendum being held. The Conservative Party did not have an overall majority and a private members bill by Conservative MP James Wharton to legislate a in-out referendum by the end of 2017 was blocked in the House of Lords. The proposals were contained in the Conservative Party manifesto for the United Kingdom general election, 2015, in which the Conservatives won with an unexpected overall majority. Following the election, the opposition Labour Party withdrew its opposition to holding an in-out EU referendum. On the bill's second reading, on 9 June 2015, MPs voted by 544 to 53 in favour of the principle of holding a referendum with only the Scottish National Party opposing the Bill.

The Act

The act legislated for a referendum to be held in the United Kingdom and Gibraltar on whether to remain a member of the EU, to be conducted by the Electoral Commission and overseen by an appointed "Chief Counting Officer" (CCO) and a "Deputy chief counting officer" (DCCO) who declared the final result for the United Kingdom. By regulation the act ordered the Secretary of State (in this case the Prime Minister) to appoint a date for the holding of the referendum, as long as the date was no later than 31 December 2017, and not on 5 May 2016 or 4 May 2017. The Electoral Commission is the public body under the terms of the Political Parties, Elections and Referendums Act 2000 that was given the task to raise public awareness ahead of polling day, and to oversee the conduct of the referendum.

Legislative consequences

The act made no provision for the result to be legally binding on the government or on any future government. The result of the referendum required a single majority vote of the United Kingdom and Gibraltar with no super majorities, double majorities of the constituent countries or any minimum turnout threshold required for the vote to pass. The act did not specify any specific consequences that would follow the result of the referendum. In the event of a "Leave" vote, it was expected that the government would decide whether, when, and under what circumstances, the UK would invoke Article 50 of the Treaty on European Union to begin a two-year process of negotiations for Britain to leave the EU. Since the act is also silent on the question of executive prerogative, the question of whether the government or Parliament is entitled to invoke Article 50 was the subject of court proceedings (Miller's case). James Eadie QC, acting for the government, submitted in his address to the court that because the act is silent, it would imply that Parliament chose not to limit prerogative powers in this matter. On 3 November 2016, the High Court in London ruled that it is the responsibility of Parliament (and not of the Government unilaterally) to decide whether, when, and how the UK should set aside legislation (in this case, the European Communities Act 1972 that makes the UK a member of the EU). The court held that the referendum was "advisory for the lawmakers in Parliament", enabling the electorate to influence Parliament in its policy decisions. In interpreting the intent of the Act, the court considered the precedents of previous UK referendums. As a consequence the European Union (Notification of Withdrawal) Bill 2017 was introduced into Parliament to gain Parliament's consent for the invocation of Article 50. European Union law remains enforceable in the United Kingdom until or unless the European Communities Act 1972 is repealed. In October 2016, Theresa May promised a "Great Repeal Bill", which would repeal the European Communities Act and restate in UK law all enactments previously in force under EU law. This bill is expected to be introduced in the May 2017 parliamentary session and enacted before or during the Article 50 negotiations. It would not come into force until the date of exit. It would smooth the transition by ensuring that all laws remain in force until specifically repealed.

Limitation

This Bill required a referendum to be held on the question of the UK’s continued membership of the European Union before the end of 2017. The bill does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions. The referendums held in Scotland, Wales and Northern Ireland in 1997 and 1998 are examples of this type, where opinion was tested before legislation was introduced. The UK does not have constitutional provisions which would require the results of a referendum to be implemented, unlike, for example, the Republic of Ireland, where the circumstances in which a binding referendum should be held are set out in its constitution. In contrast, the legislation which provided for the referendum held on AV in May 2011 would have implemented the new system of voting without further legislation, provided that the boundary changes also provided for in the Parliamentary Voting System and Constituencies Act 2011 were also implemented. In the event, there was a substantial majority against any change. The 1975 referendum was held after the re-negotiated terms of the UK’s EC membership had been agreed by all EC Member States and the terms set out in a command paper which later became known as the Referendum Act 1975 and was passed by both Houses. The Bill became law when it received Royal Assent sent on 15 December 2015.

In accordance with the Act and the public duty of the Electoral Commission, an impartial guide was posted to every household in the UK and Gibraltar in the week beginning of 16 May 2016. The advisory leaflet was titled: "Why the Government believes that voting to remain in the European Union is the best decision for the UK". This leaflet clearly stated: "This is your decision. The government will implement what you decide".

Campaign period

The act legislated that the official referendum campaign period up until polling day will be of ten weeks duration (15 April to 23 June 2016) with an official 'purdah' period where all government and public bodies were not permitted to comment or publish information specifically in regard to the subject of the referendum (four weeks duration, from 27 May until polling day).

Campaign groups spending

Under this act and the Political Parties, Elections and Referendums Act 2000, the Electoral Commission had the authority to designate and to provide funding for two official lead campaign groups, one for "Remain" and one for "Leave". Each designated group had access to grants worth up to £600,000 as well as television spots and free leaflet drops. The Act declared that these designated groups were not permitted to spend overall more than £7 million. The Act permitted other registered campaign groups to participate but that their overall spending was limited to a maximum of £700,000. Spending by unregistered groups was limited by the Act to a maximum of £10,000. The Electoral Commission announced the official "Remain" and "Leave" designated groups before the beginning of the official campaign period (on 13 April 2016) ahead of the deadline on 14 April 2016: Britain Stronger in Europe for "Remain" and Vote Leave for "Leave".

Political parties spending

Under the act and the Political Parties, Elections and Referendums Act 2000 political parties were permitted to provide funding for the referendum, although their spending was limited according to their performance at the 2015 general election and, under the rules, the political parties were limited to the maximum of each amount as follows:

All other political parties who received less than 5% of the national vote share had their maximum spending limited to no more than £700,000.

Individual spending

Unless individuals are officially registered with the Electoral Commission, the maximum limit for spending in the referendum was to be no more than £10,000.

Referendum question

The question that appeared on ballot papers in the referendum before the electorate under the act was (in English):

with the responses to the question to be (to be marked with a single (X)):

and in Welsh:

with the responses (to be marked with a single (X)):

Original proposed question

Originally the bill gave the question to appear on ballot papers:

Should the United Kingdom remain a member of the European Union?

and in Welsh:

A ddylai'r Deyrnas Unedig aros yn aelod o'r Undeb Ewropeaidd?

permitting a simple YES/NO answer.

The original proposed question was very similar to the question voters were asked in the original 1975 EEC Referendum. However, during subsequent research by the Electoral Commission found that "members of the public feel the wording was not balanced and there was a perception of bias" and proposed a change in the wording of the question. The proposed change was accepted by the government in September 2015, shortly before the bill's third reading.

Voting areas

Under the provisions of the Act, the designation of a "voting area" (also known by some as "Counting areas") on the day of the referendum was to be overseen by "Counting officers" (CO) who were to declare the results of their local areas within the United Kingdom and Gibraltar is as follows:

There were a total of 382 voting areas. 326 in England, 32 in Scotland, 22 in Wales and single areas for Northern Ireland and Gibraltar. The local counts in the voting areas began from 2200 BST (Western European Summer Time) on Thursday 23 June 2016 after all polling stations had closed. Recounts within "voting areas" were permitted when circumstances require under the instructions of the "Counting officers (CO)." It was the first time that a United Kingdom referendum was counted overnight as both the previous 1975 EC Referendum and the 2011 AV Referendum were counted during the course of the following day after polling stations closed.

Regional counts

The act also provides provision for the results from the "voting areas" to fed into twelve "regional counts" to be overseen by "Regional counting officers" (RCO) which were appointed in the following areas and declared the results for their areas as used under the European Parliamentary Elections Act 2002:

For the purposes of the referendum, the local result from Gibraltar was fed into the South West England regional count. The regions each declared their results once all local voting areas had declared their local results early on Friday 24 June 2016. There was no provision under the Act for any national or regional recounts by the Chief Counting Officer and Regional Counting Officers.

Franchise

The right to vote in the referendum applied to UK and Gibraltar residents who are British, Irish and Commonwealth citizens, in accordance with the provisions of the Representation of the People Act 1983 and the Representation of the People Act 2000. Members of the House of Lords were able to vote in the referendum. Citizens of other EU countries resident in the UK were not allowed to vote unless they were citizens of Ireland, Malta or Cyprus. The same Acts permitted UK nationals who had lived overseas for less than 15 years to vote. Voting on the day of the referendum was from 0700 to 2200 BST ([Western European Summer Time) (0700 to 2200 Central European Summer Time in Gibraltar) in some 41,000 polling stations staffed by over 100,000 officials. Each polling station was specified to have no more than 2,500 registered voters. Also under the provisions of the Representation of the People Act 2000 postal ballots were also permitted in the referendum and were sent out to eligible voters some three weeks ahead of the vote (2 June 2016). Residents of the Isle of Man, and the other Crown Dependencies Jersey and Guernsey, were not be eligible to vote in the referendum, as those territories are not part of the UK [nor of the EU].

The minimum age for voters in the referendum was 18 years, in accordance with Representation Acts (above). A House of Lords amendment proposing to lower the minimum age to 16 years was rejected.

Calling of referendum

On the morning of Saturday 20 February 2016 Prime Minister David Cameron held a special cabinet meeting in 10 Downing Street with his fellow Ministers (the first such meeting to be held on a Saturday since 3 April 1982 at the start of the Falklands War). After the meeting, he announced outside the door of No 10 that the referendum would be held on Thursday 23 June 2016. On Monday 22 February 2016, Parliament enacted secondary legislation to authorise the holding of the referendum on that date.

Eligible voters

On Tuesday 21 June 2016, the Electoral Commission announced the provisional official number of eligible voters who were entitled to vote in the referendum on Thursday 23 June in each of the constituent countries of the United Kingdom and Gibraltar following the closing date for registration on Thursday 9 June 2016 (these figures include all Commonwealth and Irish citizens along with members of the House of Lords who are not normally eligible to vote in UK general elections). The final number of eligible voters was published after 9 pm on Thursday 23 June 2016 by the Electoral Commission.

The following shows both the provisional figures and the final figures in heavy bold brackets.

Referendum result

The result was declared by Chief counting officer (CCO) Jenny Watson at Manchester Town Hall on Friday 24 June 2016.