Can the Electoral Commission legally "block" Yes organisations?

There shall be a referendum on Scottish independence. Well, the legislation doesn't quite put it that way, but the Scottish Independence Referendum Act 2013 paved the way, in law, for September's poll and laid down many of the rules which will govern how it is conducted. Want to splash out that windfall or inheritance on advertisements and leaflets during the last sixteen weeks before polling day? Well don't spend more than £10,000, or you'll find yourself up before the beak, and in line for up to a twelve-month spell in chokey. 

Alternatively, if you have deeper pockets and are keen to spent your lucre on promoting your constitutional preferences, you can make a declaration to the Electoral Commission as a "permitted participant" under the Act, informing the Commission about which side of the argument you intend to agitate for.

Permitted participants can be individuals, political parties, corporations, trades union or unincorporated associations. The rules require certain connections to the UK, but beyond that, they're fairly light touch. Individuals must live in the UK or be registered on one of the referendum's electoral rolls to qualify. Companies must be registered here, or carry out business here. Unincorporated associations must "carry on business or other activities wholly or mainly in the United Kingdom". By making the public declaration to the Commission, these individuals and bodies win the privilege of spending up to £150,000 in the referendum period and come under obligations to report details of their spending to the Commission, under pain of criminal sanctions.  

In order to make their declaration, certain forms must be observed, and certain information provided. But under the legislation, the Commission doesn't have the power to refuse to register declarations properly made to it or to block qualified individuals or organisations from attaining permitted participant status: "the Electoral Commission must maintain a register of all declarations made to them" (Schedule 4, s5(1)). (And concerningly for the CBI, despite their attempts to reverse ferret on declaring for the No campaign, the Act also says nothing about removing an organisation which has spontaneously made such a declaration from the Commission's books.)

So far, so much technical minutiae. But for those of you who opened your copies of the Herald this morning, you'll have noted that Better Together is agitating for the Electoral Commission to not to "approve" a range of Yes supporting groups - Business for Scotland, National Collective, Women for Independence and the like - as "permitted participants" in the campaign, after the Scottish Independence Convention's status was confirmed by the Commission.  Per Magnus Gardham in the paper:

"REFERENDUM watchdogs are coming under pressure to block the registration of a string of pro-independence groups amid claims they are being used as a front to boost the Yes campaign's spending power in the run-up to the vote.

Unionists are concerned a long list of pro-independence groups linked to the main Yes Scotland organisation will be recognised as official campaign bodies after the Electoral Commission yesterday approved one, the Scottish Independence Convention, as a so-called "permitted participant".

Under referendum rules, permitted participants are allowed to spend up to £150,000 campaigning in the final 16 weeks before the vote. The cash does not count towards ­official lead campaign body Yes Scotland's £1.5 million spending limit provided the organisations do not work together or co-ordinate their activity."

On the basis of the Act, this talk of "blocking" and "approval" is a nonsense. If the Commission purported to "block" a qualified organisation from registering as a "permitted participant" in the campaign, it would be acting beyond the powers parliament has given it, awarding itself discretion where the law gives it none.  A trip to the Court of Session would be in order to set matters right.

Where Better Together are on stronger ground - and pro-independence organisations will have to be careful - are the rules (you'll find them in Schedule 4, s20) about collusion between campaigning bodies, incurring referendum expenses as part of a common plan.  Given the wealth of pro-independence organisations, the comparative ease of attaining permitted participant status, and the complex informal relationships between these organisations and Yes Scotland, disentangling their spending from the official campaign and ensuring that the campaign finance rules are observed is sure to be an appalling headache for the Electoral Commission over the weeks and months of the official campaign.