On 22 November the Constitution Unit and the Committee on Standards in Public Life hosted a joint seminar on ‘The Role of Referendums in the UK’. Bringing together eminent speakers from across academia, the media, government, and elsewhere, the seminar examined possible problems with the conduct of referendums in the UK, focusing particularly on two issues: how to ensure high-quality information; and how to maintain balance during the campaign. In this, the first of two posts on the event, Alex Quirk outlines the discussions on the first of these areas.

It is widely accepted that both the Remain and the Leave camps were guilty during the EU referendum campaign of seeking to manipulate voters’ opinions through the use of misleading statistics – such as the Leave campaign’s assertion that ‘we send the EU £350 million a week’ and the Remain side’s claim that ‘families would be £4,300 worse off’ if Britain left the EU. None of the participants in the seminar questioned this viewpoint. There was lively and illuminating discussion, however, around what – if anything – should be done about it.

Controlling the truthfulness of campaign claims

The most direct method for seeking to control misleading claims would be to establish a process for identifying and challenging them. Since the referendum, a petition and an early day parliamentary motion have called for the creation of an official body that would ‘verify the truthfulness of claims made during political campaigns’ and ‘issue fines and factual clarifications’ where there were breaches. Dr Alan Renwick of the Constitution Unit pointed out that systems of this kind exist (though with limited reach) in South Australia and some American states. Among seminar participants, Professor Sarah Birch (King’s College London) gave the strongest support for this approach, proposing an electoral offence for referendums, analogous to the defamation and libel laws that apply during elections. Under the Representation of the People Act 1983 it is a criminal offence to make a false statement about the character of an election candidate, and to make a false statement that a candidate has withdrawn from an election. If these offences were to be adapted so as to apply to referendums, they could deal with at least a proportion of misleading campaign statements. Professor Meg Russell of the Constitution Unit argued that the debate on the regulation of statements during political campaigns should be seen as akin to any other debate on free markets versus regulated markets. In a goods market, we don’t trust either the consumers or the producers to regulate themselves. Why, therefore, do we trust politicians to regulate their own statements during political campaigns, when the stakes are exponentially higher?

Many participants, however, were skeptical. Professor Stuart White (University of Oxford) voiced concerns about the ‘chilling effect’ such an offence could have in discouraging political speech. This sentiment was echoed by Bernard Jenkin MP, a prominent Leave campaigner, who argued that those calling for regulation of truthfulness underestimate the ‘wisdom of the crowd’. Sir Peter Housden (formerly Scotland’s most senior civil servant) and Dr Michael Pinto-Duschinsky also expressed the view that such interventions would be undemocratic.

There was, however, interest in less stringent versions of the same approach. Will Moy (Director of Full Fact) highlighted the importance of independent fact-checking. Another option discussed was an official fact-checking body with advisory power, which could initiate investigations into the truthfulness of claims and quickly issue statements calling on campaigners not to make them. As highlighted by, respectively, CSPL Chair Lord Bew and Alan Renwick, Ireland’s referendum commissions and the New Zealand Electoral Commission already perform this function, and the evidence is that their work has produced positive results. Ed Humpherson of the UK Statistics Authority (UKSA) discussed this body’s role during the referendum campaign. He pointed to its important work in highlighting misleading statistical claims, but also said that the organisation will be keen to learn lessons and develop its practice further for future cases. In particular, he mentioned the need to react to concerns more quickly. Speed, he emphasised, is especially important during a referendum campaign, because the vote provides a final cut-off, and the campaign groups do not have future reputations to defend in the same way as political parties do during elections.

The question then remained of what body could take on this function. Sarah Birch argued that the Electoral Commission could assume this role, by vetting facts used in official materials distributed by campaigners. But Bob Posner of the Electoral Commission was unequivocal in stating that his was not the correct organisation, a view with which Alan Renwick agreed, given the danger that its impartiality might (however unfairly) be challenged. Will Moy suggested that the House of Commons Library could play a useful role, if it were removed from the constraints of so-called ‘purdah’.

Crowding out inaccurate with accurate information

Given principled concerns that preventing inaccurate claims directly might harm political speech – as well as practical concerns that it might not in any case work very well – there was also interest in alternative approaches.  One was the idea that quality, accurate information could be vigorously disseminated in order to provide voters with a source other than the highly partisan campaign groups. Professor Birch argued that, although the Electoral Commission does already produce a booklet of impartial information, much more could still be done to educate voters during a referendum campaign. Alan Renwick highlighted New Zealand as an example deserving to be explored further. During New Zealand’s voting system referendum of 2011, the New Zealand Electoral Commission produced much more information than the UK Electoral Commission did during our Alternative Vote referendum in the same year, not just describing the options, but also setting out criteria for judging among them and analysing how each option measured up against these criteria. Research suggests that information quality in the media was much higher in New Zealand than in the UK.

Improving public engagement

On the other hand, several speakers – notably Cordelia Hay (Britain Thinks) and Will Moy – emphasised that, as well as ensuring that the information in the public domain is reliable, much work also has to be done in improving public engagement with this information. Will Moy argued that experts must earn the right to be listened to by addressing people’s questions directly and by communicating effectively. He said that expert contributions during the EU referendum often fell well short of these standards.

Cordelia Hay, drawing on extensive focus group research, argued that there was a big difference between the 2014 Scottish independence referendum and the recent EU referendum in terms of the electorate’s baseline engagement and knowledge of the topic. One explanation for this, she argued, could be that in Scotland children are taught about the issue of independence in schools, and it is very much part of the popular discourse. This meant that even before the referendum campaign, the vast majority of Scots had some views on the subject. By contrast, before the EU referendum very few members of the public had any sort of point of view. This meant that measures put in place to educate the public were already placed on the back foot. Sue Inglish and Ric Bailey of the BBC agreed that voter engagement was far higher during the 2011 Scottish referendum, adding that this could be partly due to a longer ‘rumination period’, since the public knew the date of the referendum far earlier and therefore had longer to formulate their opinions. Even if the campaign period itself is not extended, they suggested, perhaps a longer ‘rumination period’ could improve voter engagement in future referendums.

A further potential method of improving voter engagement would be through deliberative citizens’ assemblies. Professor Birch suggested that citizens’ assemblies could be organised during referendum campaigns by the EC, and that they play a valuable role in increasing the education of voters. This was supported by Alan Renwick, who argued that such assemblies, where they have been tried, have generally done valuable work and produced very useful recommendations. He used the example of the Citizens’ Initiative Review, a type of citizens’ panel used in Oregon during referendum campaigns. The panel – comprising randomly selected citizens – meets for several days to hear from campaigners and experts and deliberate on the issues. It then prepares a statement that is included in the voter information pack sent to all voters. Dr Renwick said evidence shows these statements are more widely read and accepted by the electorate than statements by campaign groups. Professor White also supported the use of citizens’ assemblies. In his model, assemblies would be used to determine what referendum questions get submitted to a public vote. He argued that they would help ensure referendums would be creatures neither of elites nor of populists, but would rather become instruments for genuine democracy.

Concluding thoughts

Although the speakers did not agree on everything, there was broad consensus that the quality of information during referendum campaigns in the UK could be improved. The discussions highlighted a variety of mechanisms through which this might be achieved – but also highlighted the need to tread carefully and to investigate options fully in order to avoid making matters worse. In an era of post-truth politics, misinformation is rampant, but just pointing out when claims are inaccurate is unlikely on its own to achieve very much.

Lord Bew and Alan Renwick wrapped up the day by thanking all of the participants for their thoughtful contributions and by emphasising that further research and discussion will be needed before any firm reform proposals can be made.

The second blog covering this event, entitled ‘The Role of Referendums in the UK: The question of balance’, will be published next week.

About the author

Alex Quirk is a Research Volunteer at the Constitution Unit.