Fact-checking and the EU referendum

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The EU referendum was the most fact-checked referendum of all time, yet voters were badly misinformed on key issues. In this post Zander Goss and Alan Renwick consider the effectiveness of fact-checking during the referendum. They conclude that, although fact-checkers were unable to overcome rampant misinformation, fact-checking must be embraced. Some suggestions are offered for how fact-checkers might better cut through to voters in future.

The claim: Despite the referendum on EU membership being the most fact-checked referendum of all time, many voters were badly misinformed.

The verdict: TRUE. It is extremely unlikely any other referendum has ever been as extensively fact-checked as this one. Sadly, misinformation was rampant even as voters went to the polls. No one is certain how to make fact-checking more effective, but there are many ideas which merit further research.

 

Fact-checking was a prominent feature of the EU referendum. Indeed, this was likely the most fact-checked referendum to date not only in the UK but anywhere in the world. Nevertheless, polling evidence suggests that widespread misperception of the EU and related issues such as immigration and so-called ‘benefit tourism’ remained – a Financial Times commenter even suggested after the vote that the UK had become a ‘post-factual democracy’. This post looks at the extent and nature of fact-checking in the UK and asks whether anything could be done to increase its impact. We are not yet ready to provide answers, but we seek to identify issues that deserve further discussion.

What is fact-checking and who are the fact-checkers?

Fact-checking is a form of journalism often credited as arising from ‘ad watches’ in the early 1990s, which assessed claims in American political advertising. Fact-check teams exercise editorial judgement to select verifiable assertions made by politicians and thoroughly analyse them, thereby informing voters and helping them to hold politicians accountable. The practice has grown dramatically since the founding of pioneers such as FactCheck.org in 2004 and PolitiFact.com in 2007. Duke University Reporters’ Lab’s 2016 fact-checking census found a 50 per cent increase in fact-checking sites worldwide in the year to 15 February 2016, listing 96 active projects in 37 countries.

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New Zealand needs a new written Constitution

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The New Zealand Constitution, like that of the United Kingdom, is not written down in one place. In a forthcoming book former New Zealand Prime Minister Sir Geoffrey Palmer and Dr Andrew Butler will argue that this is not good enough and propose their own draft Constitution. In this post Sir Geoffrey Palmer explains why he believes that a single written Constitution for New Zealand is needed and elaborates on some of the detail of what he and Dr Butler are proposing.

The existing New Zealand Constitution derives from the Westminster model. In 1852 the Imperial Parliament enacted the New Zealand Constitution Act 1852. Five years later responsible government was conceded. The 1852 Act lasted until 1986 when New Zealand enacted the Constitution Act 1986. By that time it was reduced to a rump of its former self, with only 12 provisions and these offered few clues on how the New Zealand government actually worked. Nevertheless, over the years on a couple of occasions statutory enactments were held in the courts to be inconsistent with the 1852 Act. The 1986 Act was followed by the New Zealand Bill of Rights Act 1990 that had some influence on the architecture of the United Kingdom’s Human Rights Act 1998. Despite these efforts, most of the New Zealand Constitution, like that of the United Kingdom, is not written down in one place the way most constitutions are.

There have been significant constitutional reforms in New Zealand, beginning with the establishment of the Office of Ombudsman in 1962. Since then the following developments have occurred:

  • The Official Information Act 1982
  • The Constitution Act 1986, which you may think sounds like a Constitution. It sets out the main features of the system. But it is skeletal and does not look like a written Constitution as that term is generally understood
  • The New Zealand Bill of Rights Act 1990
  • Various parliamentary reforms
  • The introduction of the Mixed-member proportional system of electing members of parliament based on the German model
  • Development of measures to recognise the Treaty of Waitangi between Māori and the Crown and to provide for redress of grievances suffered by New Zealand’s indigenous people.

New Zealanders think little about their constitutional arrangements and hardly ever discuss them. There is good reason for this. They cannot find their Constitution. It is not in one place. It is obscure in many respects. The current New Zealand Constitution consists of a hodge-podge of rules, some legally binding, others not. It is formed by a jumble of statutes, some New Zealand ones and some very old English ones; a plethora of obscure conventions, letters patent and manuals, and a raft of decisions of the courts.

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What does ‘Brexit means Brexit’ mean (if anything)?

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Theresa May has been clear that ‘Brexit means Brexit’. However, Brexit could mean a number of different things. In this post Sionaidh Douglas-Scott writes that there are no legal or political reasons why Brexit negotiations must take any particular direction. The electorate voted only to leave the EU, not for any particular exit agreement.

On 28 July in Bratislava, Theresa May told eastern European countries that the British people sent a ‘very clear message’ on the need to reduce migration through their vote to leave the EU, and that the UK’s deal with the EU would have to take into account voters’ views on immigration control. But does this mean that free trade with the EU will have to be sacrificed in order to curb free movement of people? If so, then the possibility of the UK following the ‘Norway option’, by joining the EEA, would seem to be ruled out.

Yet in many ways, the EEA might be the best alternative to EU membership for the UK. It could provide legal security for trade with the EU in most goods and services and could be achieved quite quickly, reducing uncertainty. EEA membership would mean that the UK was free to sign its own trade deals with other countries and also would not bind the UK to some of the EU’s more contentious policies such as fisheries, agriculture or VAT policy. However, it would mean continuing free movement of persons with the EU, which many see as a key reason for the Leave vote. (Yet, notably, unlike EU membership, Chapter 4 of the EEA Agreement provides a safeguard, whereby EEA states can disapply part of the EEA, ‘If serious economic, societal or environmental difficulties of sectorial or regional nature liable to persist are arising.’)

But must Brexit mean ‘hard Brexit’? Must resistance to the continued free movement of persons within the EU dictate the terms of any deal the UK negotiates with the EU? I argue not – there are no legal or political reasons why Brexit negotiations must take any particular direction, let alone a hard one.

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The future of electoral reform: the importance of the personal dimension

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On 26 July the Constitution Unit held a launch event for a new book by Alan Renwick and Jean-Benoit Pilet on the ‘personalisation’ of electoral systems. At the event Alan Renwick outlined the book’s key findings, which were then discussed by electoral experts Justin Fisher, Darren Hughes and Roger Scully. Zander Goss reports on the event.

There is a well-known trend in contemporary democracies towards so-called ‘personalisation’, through which increasing attention is given to individual politicians and candidates rather than political parties. In a new book published earlier this year by Oxford University Press – Faces on the Ballot: The Personalization of Electoral Systems in Europe – the Deputy Director of the Constitution Unit, Dr Alan Renwick, writing with Jean-Benoit Pilet of the Université libre de Bruxelles, offers detailed analysis of one aspect of this phenomenon: the personalisation of electoral systems. At a launch event on 26 July chaired by the Unit’s Dr Jennifer vanHeerde-Hudson, Dr Renwick was joined by a panel of electoral experts consisting of Professor Justin Fisher (Brunel University), Professor Roger Scully (Cardiff University), and Darren Hughes (Deputy Chief Executive of the Electoral Reform Society), to discuss the book’s findings and its implications for electoral reform in the United Kingdom.

The ‘personalisation’ of electoral systems

Alan Renwick began the seminar by outlining some of the book’s core arguments. He defined the personalisation of an electoral system as ‘the degree to which voters under that system can express preferences among individual candidates and the degree to which those preferences determine which candidates win election’.

In order to examine trends in such personalisation, the book analyses changes in electoral systems in European democracies since 1945. It finds that electoral reforms changed fundamentally in the late 1980s. Whereas, before that time, there was no trend towards more or less personalised electoral systems, since then, many European countries have shifted their electoral systems towards greater personalisation. Furthermore, the processes underlying these reforms have also changed. Before 1989, electoral reforms were primarily driven by parties and political elites, while public opinion received scant attention. Since 1989, by contrast, reforms have often been motivated – at least in large part – by a desire to respond to public disengagement from or disillusionment with political parties in particular, and politics more generally. Thus, while political elites continue to hold the reins when electoral reforms are enacted, they have grown more responsive – or, at least, have sought to create the impression of being more responsive – to public opinion and voters’ desire for change. Yet the book also finds that these reforms have had only limited effects. There is some evidence that voters are now using opportunities to express candidate preferences in greater numbers, and these preferences are affecting who gets elected to a greater extent than before. But if reforms were intended to tackle rising dissatisfaction with democracy or reverse growing disengagement from electoral politics, there is no evidence that they have done so.

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Brexit and Northern Ireland: early indications are that post-Good Friday Agreement relationships will survive quite well

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Following the result of the EU referendum there was much concern about what Brexit would mean for the peace process in Northern Ireland. Brian Walker writes that, although the full ramifications of Brexit are as yet unclear, at this early stage it seems that post-Good Friday Agreement relationships will in fact survive the severe stress tests of Brexit quite well.

In the Irish Republic, the Brexit result reawakened some of the worst nightmares and revived a familiar debate. The nightmare acted on an already volatile situation in which the Fine Gael Taoiseach Enda Kenny is under internal challenge as leader of a minority coalition supported by a confidence and supply arrangement with the main (and now reviving) opposition party Fianna Fáil, with Sinn Féin as a third force trying to exploit differences between them. Not a stable situation.  At Stormont the new two party coalition of the DUP and Sinn Féin split Leave to Remain respectively, while the newly created opposition outside the Executive mainly supported Remain.

Federating the Brexit verdict  

As in Scotland demands were made that Northern Ireland should remain within the EU as a consequence of the local majority for Remain. It is hard to see how this could apply retrospectively. In any case the demands will not make headway as neither government will support them. Indeed they seem more of a tactic to press the British government to include the devolved administrations not only in consultations but in the actual negotiations over Article 50. Legal action is threatened to try to ensure Stormont’s as well as the Westminster parliament’s approval for the UK’s eventual negotiating position.

Brexit and the Good Friday Agreement 

Because the Good Friday Agreement (GFA) is an international treaty the hare is raised that Irish permission would be necessary to amend it. My informal legal guidance suggests probably not.  Moreover the Irish government are unlikely to make it a point of legal challenge. The GFA has little to say about the EU, therefore there would appear to be little to negotiate about in it.  However, like all other relevant UK law the Northern Ireland Acts which implement the GFA are EU compliant and are therefore liable to repeal. The repeal of EU legal compliance in the GFA’s enabling legislation might be used to bolster an argument to try to keep Northern Ireland within the EU. An attempt to block it would fail to win cross-community support and no devolved administration has a formal veto. But maintaining EU compliance might form a basis for some sort of associated status with the EU for Northern Ireland (and Scotland), if that were to emerge as a possible solution.

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Is there an end in sight to Poland’s constitutional crisis?

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Poland’s constitutional tribunal crisis escalated last month when the European Commission initiated the next stage of its rule of law procedure calling upon the country’s government to take action or face possible sanctions. But while the crisis is forcing the ruling party to expend political capital defending its position, it does not show any signs of backing down. Aleks Szczerbiak provides an update.

An escalating crisis

The row over Poland’s constitutional tribunal, a powerful body that rules on the constitutionality of laws, is the most serious constitutional crisis to affect the country since the collapse of communism in 1989. It began when, immediately following its victory in last October’s parliamentary election, the new government led by the right-wing Law and Justice (PiS) party annulled the appointment of five judges elected by the previous parliament to the 15-member tribunal. Earlier these judges were unable to assume their posts because Law and Justice-backed President Andrzej Duda did not accept their oaths of office. The move met with widespread criticism from most of the opposition and legal establishment who accused the government of violating judicial independence. The government’s supporters, however, placed the blame for the crisis squarely on the outgoing administration, led by the centrist Civic Platform (PO) party, which they argued tried to appoint five judges illegally just before the election to pack the tribunal with Law and Justice opponents.

However, the tribunal itself ruled that while the appointment of the two judges replacing those whose terms of office expired in December was unconstitutional the other three were nominated legally. Government supporters, in turn, argued that the tribunal did not have the right to make judgements about the constitutionality of parliamentary appointments, and Mr Duda swore in five judges nominated by the new parliament instead. Tribunal president Andrzej Rzepliński responded by declaring that the five would not participate in its work, although he subsequently allowed two of them to do so.

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Parting shots from the Lord Speaker: Baroness D’Souza reflects on the House of Lords and its future

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On Wednesday 20 July the Constitution Unit and the House of Lords authorities hosted a special event at which Baroness D’Souza reflected on her five years as Lord Speaker in conversation with Professor Meg Russell. The conversation covered the highs and lows of her tenure, as well as the issues of the size, composition and reputation of the House. Raffaella Breeze and Jack Sheldon report on the event.

At an event held on 20 July, organised by the Constitution Unit and the House of Lords authorities, the outgoing Lord Speaker Baroness D’Souza reflected on the highs and lows of her five years in the role in conversation with Professor Meg Russell, Director of the Constitution Unit. Baroness D’Souza also used the opportunity to address the pressing issues of the size and reputation of the House of Lords, indicating her own preferences for a cap on the size of the House and restrictions on Prime Ministerial patronage.

Baroness D’Souza is the second peer to hold the position of Lord Speaker, established under the Constitutional Reform Act 2005. Both Baroness Hayman, the inaugural holder of the office, and Lord Fowler, the former Conservative cabinet minister who will take on the role in September, were also present at the event. Baroness D’Souza recalled her objectives when she took office in 2011: to guard the reputation of the House, to expand its outreach programme outside of the UK, and to strengthen the relationship with the House of Commons. If Baroness Hayman’s role had been to create the position, hers was to develop and consolidate it.

The growth of the international outreach programme has been a particular feature of Baroness D’Souza’s tenure. She emphasised the vital importance of building institutional links with other parliaments, for example through exchanges of officials with parliaments in developing democracies, and opening up second channels of communication with countries where bilateral relations have gone sour, such as Russia and Taiwan. Baroness D’Souza spoke about how the international outreach programme had allowed her to pursue some of her other interests, such as promoting the role of women in politics. As Lord Speaker she had also pressed for more efficient, focused meetings of organisations such as the Inter-Parliamentary Union and Commonwealth Parliamentary Association.

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