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 second of two posts on the event, Alex Quirk outlines the discussions on the second of these areas.

The discussion of balance during the seminar can be broadly divided into two areas: how to improve balance in the media, both traditional and online; and how to address imbalances created by the legislative framework for holding referendums.

Media balance

Bob Posner of the Electoral Commission began the day by reporting on polling conducted after the referendum, which showed that over half (52 per cent) of respondents thought that the conduct of the campaign was not ‘fair and balanced’. Various perspectives emerged over the course of the day on how well the media did in ensuring that they reported the campaign in a ‘balanced’ way. Although the print and online media have no duty to report the arguments with any sort of balance, all broadcasters have a statutory duty to act with ‘due impartiality’. The BBC, in common with other broadcasters, considers the appropriate interpretation of ‘due impartiality’ for each referendum and election campaign, and produces guidelines for programme-makers. Sue Inglish, former head of political programmes at the BBC, and Ric Bailey, the BBC’s chief political adviser, argued that the BBC interpreted ‘due impartiality’ in the context of the referendum correctly. In their view, the BBC did not create a false balance between experts on each side, but simply reported the arguments of the campaigners in a balanced way. Inglish stressed that broadcasters such as the BBC and Sky did not simply report misleading statements without question, but did their best to point out that they may be misleading.

This perspective was challenged by Professor Steven Barnett of the University of Westminster, who argued that broadcasters like the BBC had failed ‘catastrophically’ during the EU referendum campaign. He contended that they followed too slavishly the press agenda, which was especially problematic given the amount of misleading information in national newspapers. He also argued that the BBC’s interpretation of ‘due impartiality’ was incorrect, as it involved balancing the coverage given to arguments from both sides too mathematically, rather than interpreting the arguments in a more interrogative fashion. Further criticism of the ‘due impartiality’ interpretation came from Dr Oliver Daddow of the University of Nottingham. He argued that, despite notional ‘balance’ in the BBC’s coverage, there remained in-built structural biases in the media as a whole, which are more difficult to counteract. Symptoms of these biases included the preponderance in coverage of Conservative party figures and a lack of time dedicated to challenging statistics used by campaigners. However, Sue Inglish and Ric Bailey disagreed with these criticisms, suggesting that broadcasters also influenced the agendas of newspapers, and that they took great care not to produce artificial balance.

Social media is growing in importance as a campaign battleground. The EU referendum was notable for the lack of public trust placed in expert opinions. This is unsurprising given that the role of the internet, especially social media, as a news source continues to grow, with 59 per cent of 16–24 year olds now using it for this purpose. According to Professor Sarah Birch (King’s College London), research from political psychologists has also shown that voters are significantly more likely to trust the opinions of people they know, rather than those of experts. The spread of misleading information on social media is almost impossible to control, and can perhaps only be counteracted by increasing the amount of reliable, impartial information available to voters through different media sources.

Legislative balance

Balanced media reporting, although important, cannot always be expected given the value of unfettered debate. However, a balanced legislative framework can and should be expected, as it provides the foundations of a fair referendum campaign. Currently, the Political Parties, Elections and Referendums Act 2000 (PPERA) provides only a basic regulatory structure for referendums, which is supplemented by an act of parliament for each individual referendum. Bernard Jenkin MP (chair of the Public Administration and Constitutional Affairs select committee) called for PPERA to be fleshed out so that many fundamental questions, such as the timing of the referendum and whether it is binding or advisory, are not left to the supplementary act. In common with several other participants, he also criticised section 125 of PPERA, which prevents the use of public funds for campaigning (or anything that could be construed as campaigning) in the final weeks before the vote. The government’s use of public funds before this so-called ‘purdah’ period to campaign for Remain during the EU referendum was controversial. Bob Posner of the Electoral Commission argued that a better balance needs to be struck between restrictions placed on the government and those placed on campaign groups, as PPERA is currently overly favourable to the government. As well as their use of public money, the government’s use of civil servants to help them campaign was viewed by many as unfair, with Bernard Jenkin arguing that the civil service would certainly not have done so much work for the government in the lead up to a general election.

Another point of discussion was the role of the Electoral Commission. Bernard Jenkin was particularly critical of the process for designating lead campaigners, which he argued took place too late, only ten weeks ahead of the campaign period. This, he said, disadvantaged the Leave campaign, as there were two viable candidates competing for the Leave designation. This confused potential donors who did not know which would be the lead Leave campaign group until shortly before the campaign officially began. Therefore, the Remain side may have gained a financial advantage through having only one serious candidate for the designation.

Bob Posner, meanwhile, argued that PPERA should be redrafted to give the Electoral Commission the power to impose heavier penalties for criminal offences committed under the regulatory regime. Currently, the maximum such penalty is a fine of £20,000, which does not provide a sufficient deterrent given the level of funding received by campaign groups.

Concluding thoughts

Dr Alan Renwick of the Constitution Unit pointed out that the UK is in fact world-leading in many aspects of the balance of its referendum campaigns. Nonetheless, interesting solutions were suggested to address the various imbalances that do (or may) exist in media coverage and the legislative framework. The criticism faced by the BBC following their coverage of the referendum campaign may provide food for thought when ‘due impartiality’ is interpreted in a future campaign. A greater focus on interrogative rather than descriptive reporting, and a heavier emphasis on fact-checking during prime-time programmes may go some way towards solving the problem.

In terms of the regulatory framework, PPERA continues to come under fire, and should perhaps be augmented to provide a more solid structure, and to reduce the need for extensive supplementary legislation. This could include giving the Electoral Commission the power to administer heavier penalties for offences during the campaign. Finally, section 125 of PPERA should be reformed to limit the government’s ability to use public funds to campaign for one side in a future referendum, as this risks damaging both the fairness of campaigns and the legitimacy of referendum results in the eyes of the public.

The first blog covering this event, entitled ‘The role of referendums in the UK: the question of information’, is available here.

A full transcript of the seminar can be accessed here.

About the author

Alex Quirk is a Research Volunteer at the Constitution Unit.