On 25 October the Constitution Unit hosted a distinguished panel to discuss the regulation of referendums in the UK in light of the EU referendum. The panel, chaired by the Unit’s Dr Alan Renwick, consisted of Jenny Watson, Chair of the Electoral Commission; Ric Bailey, Chief Adviser, Politics at the BBC; Sir Peter Housden, former Permanent Secretary to the Scottish Government, and Dr Paul Kildea, Senior Lecturer in Law at the University of New South Wales. Alex Quirk reports.
The EU referendum in June raised many questions about how referendums in the UK should be conducted. Electoral Commission research showed that 52 per cent of voters felt that the referendum campaign was not conducted in a ‘fair and balanced’ way. How is it that we can best strike the balance between allowing campaigners to speak freely to voters, and preventing a cloud of misinformation from obscuring peoples’ judgements? Is it appropriate for the government to be able to use public funds to campaign for one side of the debate? This event provided insights on these questions from experts from across a wide range of perspectives.
Jenny Watson is currently the Chair of the Electoral Commission, which is responsible for overseeing referendums in the UK, and was also the Chief Counting Officer for the EU referendum. She focused her introductory comments on the ways in which the legislative framework surrounding referendum campaigning should be altered to provide increased clarity and fairness, particularly regarding campaign spending rules.
The Political Parties, Elections and Referendums Act (PPERA), currently provides only the bare bones of the regulatory framework for referendums in the UK. This structure then needs to be fleshed out by specific supplementary legislation for each referendum such as the EU Referendum Act 2015. Watson argued for the augmentation of PPERA, to provide a more solid legislative platform in advance of a referendum. She especially recommended reform of section 125, which covers government spending of public funds. This section, she argued, needs to be altered to further restrict the ways in which the government can use public money, as there is currently an imbalance between restrictions placed on government spending, and those placed on spending by other campaigners. Making these changes will help to rectify the perceived campaigning imbalance that results from such heavy government involvement.
One function of the Electoral Commission that came under particular scrutiny during the referendum was its statutory role as designator of the ‘lead campaigner’ groups. This was the first time the legislation had been properly put to the test, as there had never before been multiple well-funded applicants in the running to lead a campaign (the Commission was required to choose between Vote Leave, eventually the successful applicant, and Grassroots Out for the Leave designation). In light of this experience, Watson argued that the statutory timetable for designation of lead campaigners, which currently allows four weeks for applications to be submitted and two weeks for the Commission to decide, does not allow sufficient time for this important process. She also suggested that the designation should happen further ahead of future referendums to allow the lead campaigners more time to secure funding.
Ric Bailey is the BBC’s Chief Adviser, Politics, and was responsible for the broadcaster’s editorial policy during the EU referendum. His opening remarks centred on the ways in which the BBC acted to ensure that people were sufficiently informed about the important issues of the referendum campaign, whilst maintaining their duty of impartiality. He stressed that the BBC’s coverage of referendums and elections is regulated only in the sense that they must cover the campaign with ‘due impartiality’ and air campaign broadcasts.
There is no generalised rulebook concerning what ‘due impartiality’ actually means. Instead, the question of the correct interpretation is considered at length by the BBC in the context of a particular referendum. It is publicly consulted on to improve transparency, and a set of guidelines is released which all programme makers are made aware of. Bailey argued that the editorial flexibility provided by the ‘due impartiality’ test means that the BBC can and do properly inform voters of key issues, without having to relentlessly pursue balanced coverage at the expense of reporting the true picture.
In response to concerns raised about potential misinformation of the public by the BBC, Bailey argued that the BBC coverage did actively hold campaigners to account for the statements that they made and did not simply report questionable statements without scrutinising them. On the subject of the campaign broadcasts that the BBC must legally give to each of the lead campaign groups, he added that it would be wrong to attempt to regulate the truth of statements made in such broadcasts because campaigners should have a way of communicating freely to voters. The burden of filtering fact from fiction should in his opinion lie with the voters themselves, rather than with an independent ‘truth commission’ as some have called for.
Sir Peter Housden
Sir Peter Housden was the Permanent Secretary to the Scottish Government between 2010 and 2015, with his period in office covering the Scottish independence referendum in 2014. He argued that many of the difficulties we face with the regulation of referendums arise from attempts to squeeze referendums into a legislative structure that is designed for elections. Referendums and elections, he argues, are very different beasts, given that referendums pose such binary questions. Echoing Jenny Watson’s concerns about government spending, he argued that during referendums it is problematic that the government use public funds to release information before the ‘purdah’ restrictions kick in and the activities of government are restricted solely to ‘essential business’.
However, he insisted that increased regulation of referendums is not the solution to all of the problems raised by the EU referendum campaign. He used the Scottish independence referendum, described by the Electoral Reform Society as a ‘vibrant, well-informed, grassroots conversation’, as an example of how a referendum should be conducted under the current legislative structure. Imposing stricter regulation following the EU referendum would, he suggested, be something of a knee-jerk reaction, and perhaps is only being talked about because the result was not supported by the so-called ‘establishment’. He agreed with Ric Bailey in arguing that the truthfulness of campaign information is best judged in the ‘court of public opinion’ rather than by an independent truth-regulating body. In his opinion, increased regulation in this area could lead to greater uncertainty, with referendum results being called into question by judicial review proceedings.
Dr Paul Kildea
The final speaker was Dr Paul Kildea, a Senior Lecturer in Law at the University of New South Wales and a referendum law expert. He provided an interesting comparative perspective, drawing on examples of the regulation of referendum law in Australia and assessing what lessons the UK could learn. He focused on the issue of voter education; it has been argued that, during referendum campaigns, people are either not sufficiently informed about the issues, or, worse, are actually misinformed about them. Like those in the UK, Australian referendums have experienced problems with campaigners making misleading claims, and have found this problem difficult to overcome. Legislation in Australia prohibits the making of misleading statements solely in relation to the actual process of voting (for example, telling someone the incorrect polling day). It does not restrict the content of claims made by campaigners. One of the reasons that regulating the substance of claims is particularly difficult in Australia is the constitutional protection of the freedom of political speech.
Dr Kildea highlighted several potential ways in which misleading campaign claims could be dealt with. He accepted that the appointment of a ‘truth commission’ to assess the accuracy of claims and order retractions was one possible solution. However, he expressed his concerns that such a body would need to take care not to become politicised, and that it may take time for its adjudications to be widely accepted by the public.
Finally, he proposed that the UK could learn from Australia’s system of community consultations which take place months in advance of a referendum and encourage voters to engage with the issues far earlier, and in a more active manner. Engagement projects such as these would be particularly useful when voters are considering such a multifaceted question as whether to remain a part of the European Union.
Looking to the future
The panel generally agreed that there are areas of the EU referendum’s regulatory framework which need to be reformed if future referendum campaigns are to be conducted with greater fairness and balance. Clearly, the government’s extensive and publicly funded involvement in the EU referendum campaign was controversial, and is likely to result in increasing pressure to reform section 125 of the PPERA and louder calls for an extension of the ‘purdah’ period. Although regulating every aspect of referendum campaigns in minute detail may rightly be seen as a recipe for uncertainty and judicial review challenges, more can be done to improve the fairness of campaigns without creating this uncertainty.
Perhaps the most difficult problem faced during referendum campaigns is how to hold campaigners to account for the accuracy of their claims. The idea of creating an independent body to regulate the truthfulness of claims may seem extreme, but the EU referendum campaign showed that it is difficult even for an engaged voter to draw the line between information and misinformation. Whilst leaving the electorate to adjudicate the facts is a nice idea in principle, in practice the ‘court of public opinion’ does not always deliver the right verdict.
About the panel
Ric Bailey is Chief Adviser, Politics, at the BBC. In this role he was responsible for BBC editorial policy during the EU referendum.
Sir Peter Housden was Permanent Secretary to the Scottish Government from 2010 to 2015. His period in office included the Scottish independence referendum in 2014.
Dr Paul Kildea is Senior Lecturer in Law at the University of New South Wales.
Jenny Watson is the Chair of the Electoral Commission and was Chief Counting Officer for the AV referendum in 2011 and for the EU referendum.
About the author
Alex Quirk is a Research Volunteer at the Constitution Unit.
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One of the main lessons to my mind is to restrict the use of referendums to the absolute minimum. It is difficult (though tempting) to argue that they should be abolished altogether but in a parliamentary democracy without a written constitution they should be limited to over-arching issues of fundamental importance. Often these will be deeply divisive issues carrying the risk of bitter division and even potential civic unrest whichever way the decision goes (like the one that has just taken place). Therefore either they should be binding and if so a two-thirds majority needed to impose the change, or they should be clearly announced as non-binding in which case they would be seen as a massive exercise in consultation prior to parliament making the final decision. This could end up as some sort of compromise, especially if the referendum result was close.