We must be realistic about what independent regulation of referendum campaigns might be able to achieve

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In the aftermath of the EU referendum much has been written about the conduct of referendums in the UK, and whether changes to the way referendum campaigns are regulated should be made in future. The latest contribution is a report by the Electoral Reform Society, in which a number of recommendations are made. In this post Alistair Clark writes that we must be realistic about how much independent regulation might be able to achieve. During the EU referendum independent authorities did speak out against Vote Leave’s £350 million claim, but with no noticeable effect on the campaign, whilst existing experience with regulatory bodies in the UK suggests that political parties push back against regulation and exploit loopholes.

With sincere apologies to Edwin Starr, referendums, what are they good for? If you believe much that has been written since the fateful decision on June 23, not much. Except of course for those writing reports and comment about how they have been conducted, the present author of this blog included. The latest in a long and continuing series of commentary is the Electoral Reform Society’s It’s Good To Talk: Doing Referendums Differently After the EU Vote, published on 1 September.

This is a typically thoughtful and provocative report from ERS. It essentially highlights the egregious quality of debate in the EU referendum, with lies, half-truths and obfuscation at a level rarely seen in British politics. That this was possible was because of the generally ill-informed nature of political debate and the lack of reliable political information. Many PSA members, this author included, signed an open letter orchestrated by the Constitution Unit and published in the Daily Telegraph during the referendum campaign, highlighting the level of misinformation and its likely impact on the democratic legitimacy of the result.

The consequences of this misinformation are becoming clearer by the day, and the warnings of the much derided ‘experts’ about the difficulties involved with Brexit are also being underlined by events. The actual date of triggering Article 50, never mind Brexit itself, recedes ever further into the distance. No-one is any clearer about what a post-Brexit UK might look like, despite some of the more outrageous claims during the campaign and recent statements by the Prime Minister and her cabinet.

Summarising somewhat, ERS makes a number of recommendations. These include the need for:

  • A minimum of three months pre-legislative scrutiny of any referendum bill
  • A minimum six month regulated campaign period
  • An official rule book for campaigners
  • Citizenship education and votes at 16
  • A website with a minimum data set setting out key facts
  • An official body be empowered to intervene when overtly misleading information is disseminated
  • Publicly funded resource for stimulating deliberative discussion
  • A tool kit for members of the public to host deliberative discussions
  • Public broadcasters should consider more deliberative – rather than combative – formats

To focus on the proposal for an official oversight body, others have made similar points. The Daily Telegraph letter, signed by upwards of 200 political scientists and legal scholars, suggested that ‘when the dust from this referendum settles, we must review means of strengthening campaign truthfulness without curtailing legitimate free speech’. An early day motion tabled in July 2016 also called for an Office of Electoral Integrity to verify the truthfulness of campaigns. Some of ERS’s other points are regular campaign issues for them, such as votes at 16 and a more recent concern with deliberative democracy. They are none the less relevant and important for that.

There is currently little regulation of campaign literature in elections or referendums, even if section 106 of the Representation of the People Act 1983 prohibits making a false statement of fact about the personal character or conduct of other election candidates, and there is also a need to provide an imprint of who has published the material. Some have fallen foul of this. Labour MP Phil Woolas was judged to have lied about a competitor in 2010 and lost his seat. There are often issues with campaign literature not containing a correct imprint.

This notwithstanding, the broader point worth drawing from ERS’s report relates to the regulation of political life. This is an under-appreciated and under-researched area. Often, when something has gone wrong, or there is some political scandal or controversy, the reaction is to call for regulation through some form of independent body. Thus, the Electoral Commission was established to regulate party spending and donations, among other things, in the aftermath of extensive concern about ‘cash for questions’ and other scandals in the 1990s. In the aftermath of the 2009 parliamentary expenses scandal, the Independent Parliamentary Standards Authority (IPSA) was set up to run MPs allowances and expenses. Other regulators, or so-called ‘watchdogs’, which can have an impact on political life include the various boundary commissions, the Committee on Standards in Public Life (CSPL), and Ofcom. Parliament also has a role through things such as the register of members’ interests.

This raises two related points. What happens when politicians simply ignore those who are meant to be regulating them? During the EU referendum, extensive work was done by various fact checkers on the claims of both sides. Importantly, the UK Statistics Authority spoke out on a number of occasions about the Leave campaign’s claim of £350 million per week contribution made to the EU, calling it ‘misleading and undermines trust in official statistics’. This had no noticeable effect and was simply ignored by the Leave campaign. Regulators commenting publicly is, then, no necessary guarantee of success.

The second and crucial point is how do regulators in politics enforce compliance against truculent politicians? My own research has shown how political parties push back against regulation and exploit loopholes. Indeed, as one recent example, the Conservative Party appear to have done just that with their campaign expenditure in 2015. Ron Johnston similarly shows how parties have also attempted to manipulate Boundary Commissions. Despite the excellent work of the CSPL, lapses in public standards continually appear in all levels of public life. Regulators have to be on the one hand, not scared to show they have teeth, but on the other are crucially dependent, through parliament, on the very politicians they regulate for their resources and continued independence. They can come under sustained pressure from that very source.

None of this is to downplay ERS’s report on the referendum. The conduct of debate in that referendum was very far from being any sort of example to the world. The level of public debate certainly needs to be raised. The report is a valuable contribution and raises some interesting and potentially useful questions. It is however to add a touch of realism to suggestions about how much independent regulation may be able to achieve. It is also to say that much more needs to be known about effective regulation and compliance in politics, and how they impact upon political life, whether that be for better or worse.

This post was originally published on the PSA Political Insight blog and is re-posted with permission.

About the author

Dr Alistair Clark is Senior Lecturer in Politics at Newcastle University.

3 thoughts on “We must be realistic about what independent regulation of referendum campaigns might be able to achieve

  1. With possibly the most important decision to be taken by this country with the result from the Brexit referendum WHY wasn’t a list of rules similar to this compiled before the referendum ?

  2. Given that any new body set up to provide unvarnished truth would certainly be derided as part of “the establishment” would it be feasible to make serious untruth in a political campaign a legal offence, actionable for example by injunction, or would this be regarded as derogating from freedom of speech? The potential consequences of what was perpetrated in this referendum campaign are so far-reaching I think a change of the law in this regard should be closely considered.

  3. Who is being made accountable for all the lis told to the public. Why is the PM keeping secrets from the public and why is it taking so long to start. Have we another thatcher running our country?

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