How can referendums in the UK be improved? Lessons learned from the EU referendum

Today, the House of Commons Public Administration and Constitutional Affairs Committee (PACAC) published a report on Lessons Learned from the EU Referendum. The report touches on a variety of areas in relation to the conduct of referendums, including the role of referendums, the role of the civil service during referendum campaigns and cyber security. PACAC’s chair, Bernard Jenkin, outlines his committee’s findings, which they hope that the government will take heed of so that the country is ready for any future referendums.

Today, the Public Administration and Constitutional Affairs Committee (PACAC) has published its latest report on Lessons Learned from the EU Referendum. With Holyrood demanding a new Scottish independence referendum, it is clear that referendums have become a permanent part of the UK’s democratic system, with major implications for our system, which is based on representative democracy. PACAC’s report highlights the importance of clarity in relation to the role and purpose of referendums, and ensuring that referendums are conducted fairly and effectively.

PACAC argues that referendums are appropriate for resolving questions of key constitutional importance that cannot be resolved through the usual medium of party politics. PACAC also argues, however, that referendums are less satisfactory in the case of what might be called a ‘bluff call’ referendum when, as last June, the referendum is used by the government to try to close down an unwelcome debate. As well as a clear question, the outcome in either case must also be clear. That means there should be more clarity and planning by the government holding the referendum, so there is less of a crisis of uncertainty if they don’t get the answer they want, as in the EU referendum.

PACAC considered four other areas in relation to the conduct of referendums: the fairness of the so-called ‘purdah’ period; the administration of the referendum; the role of the civil service during a referendum campaign; and cyber security.

On purdah, the government claimed at the time that the purdah provisions would impair the functioning of government. However, these provisions were of critical importance to the fair conduct of the referendum. The purdah provisions should be strengthened and clarified for future referendums and PACAC supports the Law Commission’s proposals to consolidate the law regulating the conduct of referendums. Additionally, PACAC asserts that the purdah restrictions should be updated to reflect the digital age, and extended to cover the full ten weeks of the referendum period, as recommended by the Electoral Commission.

With regard to the administration of the referendum, the evidence gathered during PACAC’s inquiry suggests that, while not without some faults, the EU referendum was on the whole run well.  PACAC commends the Electoral Commission for the successful delivery of the referendum, which was of enormous scale and complexity.

Nevertheless, there are lessons to be learned to improve planning and delivery in the future. During the EU referendum, one of the most significant problems was the collapse of the voter registration website, just hours before the registration deadline on 7 June. The government said that the collapse of the website was caused by ‘unprecedented demand’, with 515,256 online applications to register to vote recorded on 7 June alone.

According to the Electoral Commission, the problems that led to the website’s crash were aggravated by a large number of duplicate applications to register to vote. 38 per cent of applications made during the campaign were duplicate applications.  PACAC supports the Electoral Commission’s recommendation that the government should develop an online service to enable people to check whether they are already correctly registered to vote. This would be of invaluable assistance in preventing the Register to Vote website from collapsing again in the future, though PACAC says that the possibility of this collapse being the result of a cyber-attack cannot be ruled out. This is because the crash had indications of being a DDOS (distributed denial of service) ‘attack’, which PACAC understands is common and easy to do with botnets.

Another area PACAC identifies as requiring improvement is the designation process. During its inquiry, witnesses from both Britain Stronger In Europe and Vote Leave argued that there was a lack of clarity on the criteria used to designate campaigns. Additionally, Vote Leave argued that earlier designation would have been fairer, as the late date of designation brought several budgeting and cash-flow issues. PACAC recommend that the Electoral Commission review the designation process to examine where greater transparency could be achieved. This review should address whether earlier designation would have been fairer, and whether there should be a more explicit fit and proper person test for those applying for designation.

On the role of the civil service during referendum campaigns, PACAC regrets that the government did not accept the recommendation made by its predecessor committee, the Public Administration Select Committee (PASC), that there should be a new paragraph in the Civil Service Code to clarify the role and conduct of civil servants during referendums. The manner of the presentation of some government reports, particularly those from the Treasury (which have proved to be so inaccurate), and the decision to spend £9.3 million on sending a leaflet to all UK households advocating a Remain vote, were inappropriate and undermined public confidence in civil service impartiality. By clarifying the role of civil servants during a referendum campaign, PASC’s recommendation would have helped to avoid such controversies.

On cyber security, PACAC argues that it is important to be aware of the potential for foreign interference in referendums or elections. Lessons with regards to the protection and resilience of IT systems against possible foreign interference must also extend beyond the technical as while the US and UK understanding of cyber is predominantly technical and computer-network based, Russia and China use a cognitive approach based on understanding mass psychology and how to exploit individuals.  PACAC commends the government for promoting cyber security as a major issue for the UK, but argue that more must be done and that permanent machinery for monitoring cyber security in respect of elections and referendums should be established.

As alluded to already, PACAC is critical of the government’s lack of contingency planning for a Leave vote. In the run up to the 1975 referendum, Whitehall prepared for a possible UK exit from the Common Market with a ‘fairly intensive’ programme of Cabinet Office led contingency planning. In contrast, in the run up to the EU referendum last June, PACAC was alarmed to learn that the government’s official position was that there would be no contingency planning. The only exception to this policy was planning within the Treasury to anticipate the impact of a Leave vote on the UK’s financial stability. Although PACAC was relieved to learn that work was undertaken within the civil service on the potential implications of a Leave vote, civil servants should never have been asked to operate in a climate where contingency planning was banned. PACAC recommend that in the event of future referendums, civil servants should be tasked with preparing for both possible outcomes.

It is essential that referendums are well run, that they are conducted fairly, and that they command public trust and confidence.  PACAC hopes, therefore, that the government takes heed of its recommendations, so that the country is ready for any further referendums in the future.

PACAC’s full report on Lessons Learned from the EU Referendum can be read here.

About the author

Bernard Jenkin MP is the Chair of the House of Commons Public Administration and Constitutional Affairs select committee and the Conservative MP for Harwich and North Essex.

Why we need better Budgets

Philip Hammond’s u-turn on proposed changes to National Insurance Contributions was the latest in a growing list of Budget measures to be withdrawn in the face of a parliamentary and media backlash. Jill Rutter and Alice Lilly argue that the exceptionalism of the Budget process makes it vulnerable to poor policy making. They propose a number of possible improvements, including the introduction of a Budget cabinet committee and greater support for parliament in scrutinising tax policy.

On March 8 Chancellor of the Exchequer Philip Hammond stood up to deliver his first – and last – spring Budget. He was in such a relaxed mood that he joked that the last Chancellor to claim a spring Budget was his final one (Norman Lamont) survived only ten weeks after his speech. Within hours, the government was reeling as their backbenchers and the press denounced a change to National Insurance Contributions for the self-employed, a measure that raised the fiscally relatively trivial sum of £400m and had been welcomed by the overwhelming majority of fiscal experts as a sensible minor reform.

The measure survived only a week before Hammond was forced back to the Commons to announce he was dropping the change – for this parliament at least. The Financial Times added the NIC u-turn to the ever-expanding list (£) of Budget rabbits that turned into hand grenades when unleashed – and exploded in the face of their instigator.

So why does the Chancellor, one of the most powerful figures in government, advised by people seen (not least by themselves) as the government’s crack policy troops, keep stepping on political and policy minefields – while finding their room for manoeuvre ever more constrained?

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Why pass FOI laws? The politics of freedom of information

Ben Worthy

Why are there now more than 100 freedom of information laws around the world, even though they help opponents and hinder governments? In a new book, published this month by Manchester University Press, Ben Worthy investigates. He concludes that the main reason is that as a symbolic pledge in opposition FOI laws are hard to resist. Once in power these promises are hard to back down from, though experience suggests that proposed laws are often watered down before being enacted. These findings are summarised here.

worthy-bookWhy don’t more politicians react to freedom of information (FOI) like Lyndon Johnson? Why don’t more of them run a mile when presented with the possibility of giving the public a legal right to ask for information from the government? When the idea of an FOI law was suggested to Johnson in 1966 by a fellow Democrat Congressman the US President responded, after some swearing, ‘I thought you were on my side?’ As his Press Secretary explained:

LBJ… hated the very idea of the Freedom of Information Act; hated the thought of journalists rummaging in government closets and opening government files; hated them challenging the official view of reality.

For any budding politician, FOI appears to be the ultimate political boomerang. It helps your opponents. It hinders you.

To make FOI laws even less appealing, there are no votes in them. Merlyn Rees, a Home Secretary who fought hard against an FOI law in the 1970s, once exclaimed that ‘the Guardian can go on for as long as it likes about open government… but I can tell you that in my own constituency of 75,000 electors I would be hard pressed to find many who would be interested’. Only in India, where the Right to information Act was part of an anti-corruption campaign, have FOI laws responded to broad public enthusiasm. So how is it that there are now more than 100 FOI laws around the world?

The question is really why would a politician support FOI in the first place? Sometimes they believe in openness and sometimes leaders who don’t believe in it have it forced upon them, as Theresa May has discovered over Brexit. Other times it is for pure advantage, because a scandal makes it hard to avoid (as in Ireland), so a politician can ensure that they get information in the future or because it has promised FOI as part of a coalition deal (as in India). It is also about context. Often FOI laws are pushed through when there is lots of other constitutional or legal change going on. Across the world, as Rick Snell points out, organised groups and enthusiastic individuals, often ‘outsiders’, push for an FOI law when other key people are distracted or looking the other way.

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Monitor 65: Testing constitutional times

The latest issue of Monitor, the Constitution Unit’s regular newsletter, has been published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has included the High Court and Supreme Court rulings in the Article 50 case, the unveiling of Theresa May’s Brexit plan and the election of Donald Trump as President of the United States, plus much else besides. The front page article is reproduced here. You can read the full issue at this link

monitor-65-coverPolitics remains fast-moving. Its unexpected turns have raised fundamental questions about the constitutional order, in the UK and beyond – including the rightful place of voters, elected legislators, governments and judges in political decision-making – as well as the media’s role in questioning those decisions.

Here, Brexit remains the dominant preoccupation. The previous issue of Monitor reported how ‘ministers have repeatedly insisted that they are in charge of the Brexit negotiations and that to reveal their hand to parliament in advance would weaken their negotiating position’. A lot has changed since then.

Following rulings by the High Court on 3 November, and Supreme Court on 24 January, ministers had to accept that they require parliamentary approval to trigger Article 50; at the time of writing, the European Union (Notification of Withdrawal) Bill has now passed through the Commons and awaits scrutiny in the Lords (see page 3). Even before the bill’s introduction, the government had conceded (in December) that its Brexit plan would be published prior to triggering Article 50, and (in January) that this would include a white paper – commitments necessary in order to see off potential Commons defeats. With help from the courts, parliament has rediscovered some of its teeth.

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The process of Brexit: what comes next?

me 2015 (large)

In a new report published jointly by the Constitution Unit and the UCL European Institute, Alan Renwick examines what the process of Brexit is likely to look like over the coming weeks, months, and years. Here he summarises five key lessons.

wp2_arenwick_front_coverThe phoney war around Brexit is almost over. For months, two immediate questions have dominated discussions: How can Article 50 be triggered? And what sort of deal will ministers seek? The Supreme Court’s ruling on 24 January answered the first question. We know much more now about the second through Theresa May’s Lancaster House speech and last Thursday’s white paper. The Article 50 bill is being debate in parliament. By the end of March – if the government gets its way – we will be entering a new phase in the process.

The question is: What comes next? Can the government deliver on its wish list? Can parliament provide effective scrutiny?  Will the courts intervene again? How is Brexit likely to play in the devolved nations? Is a second referendum at all likely?

In a new report, I offer answers to these and related questions. Here I summarise five key points.

1/ The UK government is very unlikely to get what it says it wants.

The government has set out highly ambitious goals. It wants not just a divorce agreement, but also a complex, deep, and bespoke deal on the UK’s future relationship with the European Union, encompassing a comprehensive free trade agreement, a novel form of customs association, and ongoing cooperation in areas including policing, security, and research. Furthermore, it wants all of this to be both negotiated and ratified within two years.

Whether such a deal will emerge is impossible to say; but achieving it within two years certainly looks very unlikely. First, EU leaders (so far at least) have said they will not negotiate on these terms. Rather, they initially want a divorce deal only; once that has been negotiated, they propose a transitional period that preserves many features of EU membership while detailed negotiations on future relations are conducted. Thus, the first round of the negotiations will be a discussion of what the negotiations are actually about.

Second, even if the UK government gets its way in this opening round, the negotiations thereafter will be immensely complex and difficult. They will range across most policy areas. Not only will the UK be negotiating with the EU: in addition, there will be intense negotiations among the twenty-seven remaining member states and between the European Council, European Commission, and European Parliament. Whitehall’s resources for all of this are very tight, and experienced negotiators with relevant expertise are thin on the ground.

Third, a deal such as the Prime Minister proposes will have to be agreed by the European Parliament and ratified by every member state. As the troubles faced in the Walloon parliament by the Canadian free trade agreement show, there is no guarantee that ratification will be smooth. Indeed, in some countries ratification could be subject to a citizen-initiated referendum, as occurred in the Netherlands last April for the EU–Ukraine Association Agreement.

If no deal has been done and ratified within two years, the UK government will have three main options: press for an extension to the negotiation window (which would require unanimous agreement of the member states); accept the EU’s proposed transition phase; or decide that the UK is leaving without any deal. Ardent Brexiteers dislike the first two options. But most observers think the hard and disorderly Brexit implied by the third entirely unpalatable. A government that pursued it could well be forced from office, triggering deep political turmoil.

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The latest special adviser data release: political control trumps technocratic measures of effectiveness

benjamin_yonghamish In December the government published its latest list of special advisers, revealing a small reduction in numbers under Theresa May compared to David Cameron’s 2015 government, with the reduction falling mostly on departments rather than the centre. In this post Ben Yong and Harmish Mehta examine the new list. They argue that by reducing the number of special advisers in departments Prime Minister May has prioritised political control over technocratic measures of effectiveness.

When Theresa May first became Prime Minister there were a number of reports (including in The Times, The Telegraph and Civil Service World) that she had insisted on a cap on the salaries of special advisers (spads) – which in effect would limit both the number and quality of spads appointed. This cap, the reports said, would deter good people from entering government. How true are these claims?

Just before Christmas, the government made its annual data release, setting out the number of spads and how they are distributed across government. There are now 83 spads in government; down from 95 under Cameron’s 2015 government, according to the data release. The centre (broadly defined as No. 10 and the Cabinet Office) has ‘lost’ just one spad; the key Whitehall departments have lost eleven (most significantly from the merging of BIS and DECC into BEIS; and in the Treasury). So there has been a drop in numbers, but this has fallen mostly on departments, not the centre. There has been the usual grumble about salaries and cost, but that is standard fare.

The bigger question is what all this says about May’s government, and more generally, British government. In popular parlance, spads are regarded as a waste of money and at worst, a pernicious breed of quasi-politicians. Within Westminster and Whitehall, however, they have long been accepted as part of British government. Spads are people the minister can completely trust, in a lonely and difficult role; they provide political advice of a kind that career civil servants often cannot; they can help coordinate government. It is this latter view of spads which informs some criticisms of May’s policy on spads (see The Spectator and The Telegraph). Limiting the number of spads and the kind of spads via a salary cap means limiting government effectiveness.

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The Grimstone proposals to reform the public appointments process are a step in the wrong direction

220px-david_normington_-_permanent_secretary

Earlier this year the government published Sir Gerry Grimstone’s report on public appointments, proposing a dismantling of the Nolan system of regulation that has been in place since 1995. Sir David Normington, whose term as Commissioner for Public Appointments ended shortly after the publication of the Grimstone report, has been an outspoken critic of the proposals. At a Constitution Unit seminar on 8 December he explained why he believes they represent a step in the wrong direction. This post is adapted from his speech.

Ministers make on average over 2,000 appointments each year to boards of about 300 public bodies and statutory offices. The bodies touch every aspect of our lives. They include regulators like the boards of Ofcom and Ofwat; inspectors, like the Chief Inspectors of Schools, Police, Probation and Prisons; funders like the Arts Council and the Big Lottery Fund; advisory bodies like the Committee on Climate Change; and a multitude of executive bodies, like NHS trusts, national parks, museums and galleries.

It matters who fills these roles. The boards themselves need to comprise well-functioning teams of skilled people from diverse backgrounds who can command public confidence. At the same time these are ministerial appointments and it is essential that those appointed are willing to work within, and not against, the framework of the policy that the government of the day has set down.

There is, however, a balance to be struck between ministers’ right to appoint and independent oversight and regulation. Think of it as a spectrum. At one end ministers have almost complete freedom to make appointments as they think fit. At the other, appointments are handed over to an independent body and ministers forego their powers to appoint altogether. Over nearly 30 years policy and practice has flowed to and fro across this spectrum; and so have the arguments about where to draw the line.

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