A gratefully-received guest from Thomas Widmann, who blogs here. 

The SNP didn’t react kindly to the restrictions imposed on the independence referendum by the Unionist parties. Most of the differences between the two sides  are easily explainable in terms of expected votes. For instance, the SNP are clearly expecting voters under 18 to be more favourable towards independence than other voters, especially after being enfranchised by the SNP government. In the same way, Westminster’s suggestion that EU nationals living in Scotland should be allowed to take part is probably (but wrongly, in my view) due to an expectation that they’ll support the union more strongly than UK nationals.

However, it’s not immediately obvious why the SNP find the Electoral Commission unacceptable. After all, they seem perfectly happy to let the EC’s Scottish office be in charge of elections to the Scottish Parliament. Most observers have just hand-waved this issue away by saying that the SNP dislike anything made in the UK (and the EC is a body created by the UK government), or assumed that it’s just an unimportant demand so that they have something to trade in during
negotiations with Westminster.

I don’t think it’s as simple as that, though. The SNP have been planning for this for a very long time, and they normally have very good long-term reasons for what they do, just like their attack on the Supreme Court, which could be seen as a precaution in case the independence referendum ends up there.

So what are the issues with the Electoral Commission? There are at several areas that could be important.

First of all, there are very few Scots in the Electoral Commission. Currently there are two Scottish commissioners (John McCormick and George Reid), but the latter will be replaced in October, and probably not by an SNP member (the small parties at Westminster take turns). This makes it more likely that they’ll rule in favour of the Unionist side if there is a dispute, especially given that the commissioners are accountable directly to the UK Parliament.

Secondly, as pointed out in a recent comment on this blog by Alwyn ap Huw, if we look at their role in the recent referendum on increased powers for the Welsh Assembly, they might restrict the allowed spending to figures that would favour the Unionist parties. In Wales, the spending limits were £600k for a vote share of more than 30%; £480k for a vote share between 20% and 30%, £360k for a share between 10% and 20%, and £100 for smaller parties. If we use the list votes from the election to the Scottish Parliament in 2011 as a guide, and double the spending limits given Scotland’s size, such a rule could produce the following figures: Yes £1,400 (SNP £1,200k, Green £200k), No £1,880k (Labour £960k, Tories £720k, LibDems £200k). However, it appears that although the Electoral Commission would make a recommendation on the limits, they would be defined by the Scottish Parliament when calling the referendum, and they would apply only for a specific period of time before the referendum anyway, so this is unlikely to be the main reason.

Thirdly, the Electoral Commission seems to be following the Political Parties, Elections and Referendums Act (PPERA) to the letter, and it contains very specific rules on many aspects of holding a referendum, some of which could be favourable to the Unionists. It could be easier to escape the limitations of PPERA if the Electoral Commission were not involved, especially if the referendum had been called by the Scottish Parliament without Westminster’s blessing, simply because the referendum wouldn’t necessarily have a legal basis anyway.

One aspect that is of particular interest here is that “overseas donations are prohibited by PPERA, since only those individuals who are on a UK electoral register, and only organisations that are registered and carry on business in the UK, can make donations to politicals organisations in the UK“, according to the EC. In other words, PPERA doesn’t seem to prevent the No side from getting funding from England, while blocking funding from expat Scots around the world.  I presume the Yes side would want to treat English and overseas donations the same way.

This could be quite a big deal. 2014 is the second Year of Homecoming, and together with the Commonwealth Games and the Ryder Cup it is likely to bring significant numbers of expat Scots to Scotland, many of whom are likely to have a romantic view of Scottish independence. If this source of income is denied to the Yes side, while the No side can get plenty of funding from English businesses with a logistic interest in keeping the Union together, it could be problematic.

On the other hand, many people are extremely enthusiastic about the prospect of an independent Scotland, while very few Unionists have equally strong feelings, so my guess is the Yes side should by default get the most donations, if allowed by the Electoral Commission.