First of all an acknowledgement to @peatworrier whose blog earlier in the week started me in this direction and with whom I appeared on Newsnight Scotland to discuss the legal issues involved on Wednesday past.
There has been some publicity over the last few days over the stated intention of various Yes Campaign organisations to register with the Electoral Commission as "permitted participants" in the Independence referendum and thus subvert the campaign spending limits supposedly in place.
Having considered the legislation however my own impression is that, if this happens, it is likely to be more of a problem for Yes Scotland than an advantage and I below go on to explain why. In doing so I also readily admit a misapprehension of my own which caused an error in law in what I said when I appeared on Newsnight Scotland with the peaty one.
But first I had better set out the general framework surrounding Referendum campaign expenditure.
It is set out in the primary legislation, The Scottish Independence Referendum Act 2013 and particularly Schedule 4 thereto.
Essentially the broad intention is to cap what can be spent on either side.
There is an anticipation that there will be a main campaign organisation on either side, now confirmed as Yes Scotland and Better Together respectively. They are given a total spending limit of £1,500,000 each. In addition it is recognised that political parties have a special role in the process so they are entitled to spend a fraction of another £3,000,000 calculated with reference to their vote at the last Scottish Parliament elections. Thus, for example, the SNP can spend £1,344,000; Labour £834,000. Since, including the Greens in the Yes column, pro and anti independence parties more or less tied the 2011 election, the net effect is a broad equality of permitted spending on both sides.
But then we have the additional element: "Permitted Participants".
A permitted participant is somebody (an individual or a body corporate) who wishes to attempt to persuade voters to vote one way or the other and to spend more than £10,000 in the process. If they register with the Electoral Commission they are allowed to do just that subject even then to a spending cap of £150,000. Failure to register but incurring expenditure anyway constitutes a criminal offence. As does, needless to say, exceeding the cap.
The "controversy" surrounds the suggestion that various Yes Scotland front organisations propose to register as Permitted Participants and thus boost the spending available to the independistas.
Before going on to deal with this issue, I should concede that the Yes Campaign does not have a few genuinely independent allies. Like them or laugh at them, National Collective is in nobody's pocket. That would require a degree of coherence to their activities. Even more so Women for Indy, who indeed are so outwith the control of Yes Scotland Central that the Nats appear to have set up a rival Mums for Change organisation to be more on message. If NC or WfI register and spend money they would find no quarrel from me. Indeed I might be tempted to give National Collective some dosh myself.
But, it has been obvious for some time that Yes Scotland is running a pastiche "Obama for America" campaign. They even use the same basic colour scheme. One of the features of, particularly, the first historic Obama campaign, was various groups "for Obama". Veterans for Obama; Seniors for Obama; Students for Obama etc. And one of the features of Yes Scotland has been a similar plethora of supposed interest groups either "for Yes" or "for Indy".
But the USA is a country of 300 million inhabitants. Scotland is not. So the number of actual people meeting the qualifying criteria for these groups in a country of 5 million has been limited and the problem has been solved by effectively allowing anybody to claim to be a supporter. Thus you can support "Farming for Yes" even if you don't have so much as a garden and indeed a quick look at the twitter page of "Grannies4Indy" reveals a surprising number of middle aged men among their 424 followers.
Then we have the notorious examples of Business for Scotland with its alleged 1800 members, 1740 of whom appear to prefer to remain anonymous and many of the remaining sixty who are not businesses or even business people at all. Or Labour for Indy, which was revealed by the press to be largely "SNP Councillors pretending to be Labour" for Indy and eventually forced to confess that it was not a grass roots organisation but rather an astroturf one largely funded by Yes Scotland.
All's fair in love and politics I suppose. So long as no attempt is made to maintain these are in any way stand alone organisations. They are no more independent of Yes Scotland than United with Labour is independent of the Labour Party.
But, and I accept it is a but, if they attempt to register independently with the Electoral Commission will this give the Yes side a spending advantage anyway?
Here's where the law, and the possible problem for Yes Scotland, kicks in. This is a bit boring but stick with me.
Here is paragraph 20 of Schedule 4 to the Scottish Independence referendum Act.
20 (1) This paragraph applies where—
(a) referendum expenses are incurred by or on behalf of an individual or body during
the referendum period,
(b) the expenses are incurred as part of a common plan or other arrangement with one
or more other individuals or bodies,
(c) the common plan or arrangement is one whereby referendum expenses are to be
incurred by or on behalf of both or all of the individuals or bodies involved in the
common plan or arrangement with a view to, or otherwise in connection with,
promoting or procuring one particular outcome in the referendum, and
(d) there is a designated organisation in respect of each of the possible outcomes in
(2) Subject to sub-paragraph (4), the expenses referred to in sub-paragraph (1)(a) are to be
treated for the purposes of paragraphs 18 and 19 as having also been incurred by each of
the other individuals or bodies involved in the common plan or arrangement.
(3) This paragraph applies whether or not any of the individuals or bodies involved in the
common plan or arrangement is a permitted participant.
(4) Where a designated organisation is involved in the common plan or arrangement, the
expenses referred to in sub-paragraph (1)(a)—
(a) so far as—
(i) incurred by or on behalf of an individual or body that is not a permitted
(ii) the total amount of such expenses incurred by or on behalf of that
individual or body does not exceed £10,000,
are to be treated for the purposes of paragraphs 18 and 19 as having been incurred
only by the designated organisation,
(b) so far as incurred by or on behalf of a permitted participant other than the
designated organisation are to be treated for the purposes of paragraphs 18 and 19
as having been incurred only by the designated organisation, and
(c) so far as incurred by or on behalf of the designated organisation, are not to be
treated for any purposes as having been incurred also by or on behalf of any other
individual or body.
Now, what does that mean? Just to clarify. A "designated organisation" is Yes Scotland (or conversely Better Together). A permitted participant is e.g. Business for Scotland. The key phrase is "a common plan".
If literature or advertising is undertaken by Business for Scotland with the consent or knowledge of Yes Scotland, or bearing the branding of Yes Scotland, then, no matter who actually pays for it, that expenditure [is] "to be treated as having been incurred by [Yes Scotland]".
And the stakes here are high. For failure to acknowledge expenditure incurred in a common plan (by either Yes Scotland or Better Together) on their eventual election expense return would leave the person signing that return facing a period in the jail.
So are the Nats really going to take that risk for a few pounds of spending advantage? Somehow I doubt it.
It seems to me instead that the legislation causes quite a dilemma for the SNP and Yes Scotland in a different way and that relates to expenditure by the SNP themselves. The SNP will undoubtedly be a permitted participant but they do not have a separate campaign organisation. There may be Green Yes but there is no "Nationalists for Independence" organisation.
There is only Yes Scotland.
Yes Scotland on whose board sits the Deputy Leader of the SNP and which has been described by Stan Blackley, its departed full time official as "little more than an SNP front".
So how exactly is any expenditure incurred by the SNP not going to be incurred in a "common plan" with Yes Scotland? This is more than an academic point because, in that eventuality, no matter who pays the bills, all of that expenditure will be deemed, by law, to have been incurred (para 20(4)(c) above) "only by [Yes Scotland]". So the SNP could find itself using up the allowable expenditure of Yes Scotland while struggling to legitimately access their own allowable expenditure!
This is, I concede, also an issue for our side but to nothing like the same extent. No matter what else one thinks of Better Together, it has an identity separate from the Major Parties supporting it and these Parties in turn have their own distinctive "brand" in a way which simply does not exist on the other side. Politically that might even have been the Yessers intention (although I doubt it) but legally it is a problem.
Far be it for me to offer unsolicited legal advice but a good start would be to get Nicola off the Yes Scotland Board and replace her with someone not so obviously part of the SNP leadership. Any more advice would need to be paid for.
While on the telly as a result of a rushed misreading of Para 20 I suggested that any expenditure incurred in a common plan was deemed to be expenditure in full of both (or however many) participants in the plan. It is in terms of Para 20(2) but I had failed to appreciate the terms of Para 20(4)(c) creating an exception to that principle which applies (only) where one of the participants is a designated organisation.
Addendum (Added 3rd May).
Since first blogging this Peter Russell (@planet_pedro) has helpfully copied me in to an exchange he has had with the Electoral Commission on the potential consequence of one or other side being found to have exceeded the spending limits. Not only might those responsible be liable to criminal penalties, the result of the Referendum itself could be set aside by Judicial Review. All the more reason I think for Yes Scotland not getting up to any dodgy practices.