Britain’s elections regulator could agree to a future demand by the SNP to hold a non-binding referendum on Scottish independence, even if the move is opposed by Boris Johnson, the body’s new chairman has indicated.
In his first interview since taking up the role, John Pullinger told The Telegraph that the Electoral Commission is not just "a body of the UK Parliament", and would have an "independent discussion" with the Scottish Parliament if it wanted "something to be done that helps them with their democracy".
His remarks put the Commission on a collision course with Mr Johnson, who has said he would reject a request for an "irresponsible and reckless" second referendum.
Mr Pullinger also issues an unprecedented apology to Darren Grimes, the pro-Brexit activist who was wrongly pursued by the Commission over alleged campaign offences, admitting the 27-year-old "had a horrible time" and "what happened to him should not have happened".
The Commission must "do better" and be "more human", he added.
Nicola Sturgeon claims that May’s Scottish parliamentary elections gave the Scottish National Party a mandate for a second poll, and SNP politicians have raised the prospect the First Minister could seek to hold a unilateral poll if the Westminster Government rejects her demands.
Ms Sturgeon is expected to hold a vote in Holyrood before issuing a formal request to legislate for a second referendum, allowing her to say she is carrying out the will of the Scottish Parliament.
‘We put Vote Leave people through a ‘horrible time”
The UK’s elections watchdog must "do better" and be "more human", the body’s new chairman says today, as he admits that Brexit activists were subjected to "horrible" experiences that must never be repeated.
Announcing plans for a new "support programme" for political campaigners, John Pullinger pledges to "turn the page" following a series of running battles between the Electoral Commission and the Conservatives, as well as pro-Leave campaigners.
The remarks are the first time a senior figure at the commission has publicly apologised for the way it pursued pro-Brexit activists such as Darren Grimes, who spoke of the "huge toll" of facing multiple investigations over several years, before being cleared.
Darren Grimes outside court after judgment went in his favour. Mr Grimes appealed against a £20,000 fine imposed by the Electoral Commission. It said £675,000 spent by BeLeave, a youth Brexit group founded by Grimes, should have been declared by Vote Leave
Mr Pullinger admits it is "fair enough" that ministers "want to be confident we have learnt those lessons" from its past behaviour "before they trust us with the responsibility" to acquire new powers.
Under Mr Pullinger’s predecessor, Sir John Holmes, the commission faced calls for an overhaul after repeatedly being accused of wrongly targeting Tory and pro-Leave figures over alleged breaches of campaign rules.
Mr Grimes and Alan Halsall, another pro-Brexit campaign figure, lived under the shadow of police investigations for two years following referrals by the commission, before the cases were dropped by the Met.
Both men have spoken of the "terrible" personal toll of the way they were pursued by the commission, with Mr Grimes resorting to online crowdfunding to successfully appeal a £20,000 fine imposed by the elections regulator. Mr Grimes, 27, had spoken of his fears that the commission’s "punitive approach" risked putting "my generation off engaging in our democracy."
Speaking to The Telegraph from his home in Kent, Mr Pullinger, the former National Statistician, insists that the commission comprises "dedicated, highly-skilled public servants who are working and really committing to improving our democracy."
But he adds: "There are a number of lessons from the past that we really need to get our heads around. The first is to act quickly. Some of the investigations that I’ve heard the stories of have taken a very long time and that has a toll on people.
"It’s very worrying for them individually, it can be damaging for their reputations, and you need to take that into account.
"Another [lesson] I think, would be to treat people like people. I mean, it is a legal regulatory authority, but you can be robust, and be courteous at the same time and just be human about it and recognise that this process can be very concerning for people, and work with that. Some of the stories … you’ve seen that has had an emotional impact, and we need to think about that. And it can just feel like a byzantine bureaucracy … a lot of that is the artefact of the legislation. But we ought to try to do better."
Mr Pullinger pledges to ditch a "one size fits all" approach which has led to "very stressful" experiences for local volunteers attempting to fill out election returns, saying that he feared a "chilling effect of people being put off" by onerous paperwork.
But "probably the most significant" lesson of the past few years, says Mr Pullinger, is to "do more to get ahead of the curve", or, as he puts it, "Help people to comply with [the rules], rather than come along after the event and catch them out because they haven’t."
Such an approach may have helped Mr Grimes, who described how he was pursued over "an incorrectly ticked box on an application form."
"Darren Grimes is one that stands out," Mr Pullinger says. "I’ve looked very carefully at that … he had a horrible time.
"The Commission has apologised for what happened to him and I take this opportunity to apologise again. What happened to him should not have happened.
"Whilst there have not been other cases that have come to court that the Commission has lost, there are flavours of what I’ve said to you in several of the cases."
Mr Pullinger’s remarks in relation to Mr Grimes are particularly startling because there is no record of the Commission having made such an apology already, and its senior officials strongly defended their approach during a Commons committee hearing last year. Mr Grimes confirmed this weekend that the Commission had not apologised to him directly.
Mr Pullinger, 62, who was the Commons Librarian before going on to run the UK Statistics Authority until 2019, is, however, now overseeing a new "regulatory support programme" intended to help activists, campaigners and candidates to "get things right" from the outset, rather than be caught out when it is too late.
In future, new referendum campaigns will benefit from a "tailored offering", with relevant staff benefiting from in-person advice from commission officials.
"We will be writing soon to all 400 plus political parties that we have in this country to explain how that might operate."
Commission advice on campaign rules will be made more "accessible", including by online features that allow users to "click through to what you want" rather than having to scroll through a "200 page document".
But the new approach "might be more human as well," says Mr Pullinger. "It is making it human, so sitting down with people."
As well as breaking ranks with his predecessor to admit failings over the commission’s past approach, Mr Pullinger acknowledges a perception that the body was biased against pro-Brexit people and groups.
In 2018, The Telegraph revealed that months after being nominated as the body’s chairman, Mr Pullinger’s predecessor Sir John said in a speech that he “regret[ted] the result” of the 2016 Brexit referendum and complained about “the panoply of Eurosceptic nonsense about the EU” heard during the campaign.
An additional three commissioners were also revealed to have made pronouncements on Brexit since the referendum – all of them backing Remain, and despite the body’s code of conduct states that commissioners must “act at all times” to “uphold its impartiality”. All three have now also left the commission.
"Yes, I can understand why people thought that," says Mr Pullinger, when asked about the perception that the commission had failed to be impartial.
"There was an independent investigation at the time that said there was no bias in it all but the perception was out there and the perception has continued. All I can say now is, with the commission I’ve got at the moment following my appointment, I’m absolutely confident that we have a group of people here who do have the opportunity to command public confidence."
The Conservatives’ unease with the commission has made for some difficult conversations about the body’s proposals to hand itself powers to prosecute campaigners and political parties – which were also first reported by The Telegraph.
Earlier this month, ministers announced plans to remove the commission’s legal ability to award itself the new powers, after the Tories opposed the move.
Mr Pullinger says: "This was reported by The Telegraph and various people said, ‘well, hang on a minute, this doesn’t seem like the sort of extra activity the commission should be doing.’"
He adds: "The conversations that I’ve been having with the Government are, if you take this away from us, we need to be confident that someone else will pick it up."
Mr Pullinger says he was seen as a "suitable person for the job" because "I would be fresh and I would be able to turn the page on some of the things that have been problematic in the past and really listen to what those problems were and then move on."
But he puts himself on a fresh collision course with Boris Johnson over a potential Scottish referendum, indicating that the commission could agree to facilitate a new, non-binding poll even if the Westminster Government opposes the move.
Support for Scottish independence
"If the parliament in Scotland is wanting something to be done that helps them with their democracy, we will have an independent discussion with them about whether it’s appropriate for the Electoral Commission to support that," he says.
Mr Pullinger also suggests that the commission will carefully scrutinise the Government’s plans to require people to show photo identification in order to vote.
"If we can pull it off, that’s a good thing," he says. But, risking a further row with the Government, Mr Pullinger acknowledges opposition attacks which claim that the Conservatives are attempting to "disenfranchise" people without ID.
"It is certainly true to say there are millions of people who currently do not have photo ID and if you did nothing, what would they do?
"And often they are people who are otherwise disadvantaged or marginalised and, if that happened, then the worst fears of people would be realised.
"But that’s quite big if, and I think the test will come as to what the package eventually looks like when it comes out the other side of the parliamentary debate."
Q&A: How indyRef2 would be organised
What is Nicola Sturgeon’s plan to secure a new vote?
The SNP leader is likely to ask the UK Government later this year or early next year for a transfer of temporary powers – under what is known as a Section 30 order – which if granted would put the legality of a referendum beyond doubt and allow Holyrood to legislate for a new vote.
David Cameron’s government agreed to a Section 30 order to allow the 2014 referendum to take place. However, the UK Government has made clear that such an order would be refused this time, because it believes the focus should be on recovery from the pandemic and the independence question was resolved seven years ago when Scots decisively backed staying in the UK.
Ms Sturgeon has said refusing her request would be an affront to democracy, with a majority of MSPs supporting a new referendum, and has maintained the UK Government will eventually cave in. She wants to hold a new referendum by 2023.
Does she have a plan B?
Yes. If the UK Government maintains its opposition, Ms Sturgeon will attempt to legislate at Holyrood to hold her own vote without the UK Government’s permission.
Can she do this?
It has never been tested, but many experts think not. The UK constitution is explicitly reserved to Westminster under the Scotland Act, which created devolution. An attempt to hold a unilateral referendum would be certain to be challenged in the courts, probably the UK Government.
Dorothy Bain, the new Lord Advocate, would have to agree that the Bill was within the parliament’s powers before SNP ministers could table the bill. If this hurdle was cleared, Alison Johnstone, Holyrood’s new presiding officer – the parliament’s version of the Commons Speaker – would give her opinion on this crucial issue after taking independent legal advice.
However, her opinion is not binding and Ms Sturgeon could press ahead with passing the Bill even if Ms Johnstone rules it beyond Holyrood’s powers.
With Holyrood having a clear pro-independence majority following May’s election, there appears to be little doubt the Bill would pass. The UK Government would then have 28 days to challenge its legality.
Lord Stewart of Dirleton, the Advocate General for Scotland, the UK’s Government’s most senior advisor on Scots law, would give his opinion and it would be extremely likely the matter would be referred to the Supreme Court.
Although a private individual could also challenge the legislation – a Scottish Gina Miller – this could only come when the Bill has received Royal Assent and it has passed into law. It is thought likely the UK Government would not let it get to this stage.
The outcome would not be certain, with some arguing Holyrood could hold a consultative ballot that was not legally binding. For example the result of the Brexit referendum did not place a legal obligation on the UK Government to leave the EU, so they claim a Scottish referendum would also not violate the Scotland Act as the result would have political and moral but not legal force.
What if Sturgeon won in court?
Even if the SNP was able to hold its own referendum, writes Daniel Sanderson, the unionist side may simply boycott the vote and urge pro-UK voters to do the same. This would mean the result would not be seen as legitimate unless more than half of the overall electorate – rather than just people turning out to vote – backed separation.
And what if she lost?
The uncomfortable reality for Ms Sturgeon may well be that she simply does not have a legal route to a new referendum without UK Government cooperation. If this turns out to be the case, she is likely to use this to attempt to build political support for her cause in the long term. She would claim that regardless of someone’s constitutional views, it is wrong for Scotland to be held in the UK against its will.
Many pro-independence supporters would call for more radical action, such as making a Calalan-style declaration of independence at Holyrood, although this would not be recognised as legitimate by the international community.
Others have said that a Westminster or Holyrood election could be turned into a de-facto referendum on independence, although again, it is hard to see how this could actually lead to separation even if the SNP ‘won’ any such vote.
What issues need to be resolved if a new vote is held?
The most controversial job that would face the Electoral Commission would be to test the referendum question. Many unionists believe the precedent set by the Brexit process – where a Leave/Remain question was chosen rather than the Yes/No used in 2014 – should be adopted for any future independence vote.
The SNP would be likely to resist any attempt to change the question, believing being ‘Yes’ is clear to voters and hands them an advantage by making their case appear more positive.
Meanwhile, some unionists believe that all Scots living in the UK – rather than just people living in Scotland – should be handed the vote, with this group more likely to oppose separation.