The regulation of the EU referendum: lessons to be learned

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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

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. Continue reading

Monitor 64: Brexit and the transformation of British politics

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 of major political and constitutional upheaval following the EU referendum result on 23 June. Unsurprisingly Brexit and its implications feature prominently. The front page article is reproduced here. You can read the full issue at this link

The months since the previous issue of Monitor was published on 9 June have been the most dramatic in post-war UK political history. The unexpected victory for Leave in the referendum on the UK’s EU membership sent shockwaves throughout the political system.

Within three weeks of that vote, David Cameron had left Downing Street and been replaced as Prime Minister by Theresa May. Three quarters of Labour MPs had voted no confidence in their leader, Jeremonitor-octobermy Corbyn – and yet he sat tight, in open defiance of the traditional norms of parliamentary democracy. UKIP and the Green Party had both also entered leadership contests. Nicola Sturgeon had declared that a second referendum on Scottish independence was now ‘highly likely’.

Much of this issue of Monitor deals with the aftermath of the Brexit vote, including its implications for Westminster (see pages 2–3), Whitehall (page 6), the devolved administrations (page 10–11) and the EU (page 13). We also explore ongoing debates regarding the conduct of the referendum itself (pages 7–8). This introduction draws out five major constitutional themes.

First, the referendum and its aftermath demonstrate that popular sovereignty, not parliamentary sovereignty, is now the central principle of the UK constitution. The doctrine that parliament is the ultimate sovereign power in the UK (or, at least, in England – Scottish nationalists discern a different heritage north of the border) was asserted by the nineteenth-century constitutional theorist A. V. Dicey. The emergence of referendums since the 1970s had eroded that principle. The referendum in June, however, was the first in which the popular vote went against the clear will of the majority in the House of Commons. That most MPs feel bound to accept that decision shows where ultimate power in UK politics actually lies. There has been great debate over the summer as to whether parliamentary approval is needed to trigger Article 50 of the Lisbon Treaty and begin formal talks on Brexit (see page 12). But this has been something of a sideshow: even if the courts deem that parliament’s consent is needed, it is all but certain to be granted.

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Fact-checking and the EU referendum

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The EU referendum was the most fact-checked referendum of all time, yet voters were badly misinformed on key issues. In this post Zander Goss and Alan Renwick consider the effectiveness of fact-checking during the referendum. They conclude that, although fact-checkers were unable to overcome rampant misinformation, fact-checking must be embraced. Some suggestions are offered for how fact-checkers might better cut through to voters in future.

The claim: Despite the referendum on EU membership being the most fact-checked referendum of all time, many voters were badly misinformed.

The verdict: TRUE. It is extremely unlikely any other referendum has ever been as extensively fact-checked as this one. Sadly, misinformation was rampant even as voters went to the polls. No one is certain how to make fact-checking more effective, but there are many ideas which merit further research.

 

Fact-checking was a prominent feature of the EU referendum. Indeed, this was likely the most fact-checked referendum to date not only in the UK but anywhere in the world. Nevertheless, polling evidence suggests that widespread misperception of the EU and related issues such as immigration and so-called ‘benefit tourism’ remained – a Financial Times commenter even suggested after the vote that the UK had become a ‘post-factual democracy’. This post looks at the extent and nature of fact-checking in the UK and asks whether anything could be done to increase its impact. We are not yet ready to provide answers, but we seek to identify issues that deserve further discussion.

What is fact-checking and who are the fact-checkers?

Fact-checking is a form of journalism often credited as arising from ‘ad watches’ in the early 1990s, which assessed claims in American political advertising. Fact-check teams exercise editorial judgement to select verifiable assertions made by politicians and thoroughly analyse them, thereby informing voters and helping them to hold politicians accountable. The practice has grown dramatically since the founding of pioneers such as FactCheck.org in 2004 and PolitiFact.com in 2007. Duke University Reporters’ Lab’s 2016 fact-checking census found a 50 per cent increase in fact-checking sites worldwide in the year to 15 February 2016, listing 96 active projects in 37 countries.

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The future of electoral reform: the importance of the personal dimension

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On 26 July the Constitution Unit held a launch event for a new book by Alan Renwick and Jean-Benoit Pilet on the ‘personalisation’ of electoral systems. At the event Alan Renwick outlined the book’s key findings, which were then discussed by electoral experts Justin Fisher, Darren Hughes and Roger Scully. Zander Goss reports on the event.

There is a well-known trend in contemporary democracies towards so-called ‘personalisation’, through which increasing attention is given to individual politicians and candidates rather than political parties. In a new book published earlier this year by Oxford University Press – Faces on the Ballot: The Personalization of Electoral Systems in Europe – the Deputy Director of the Constitution Unit, Dr Alan Renwick, writing with Jean-Benoit Pilet of the Université libre de Bruxelles, offers detailed analysis of one aspect of this phenomenon: the personalisation of electoral systems. At a launch event on 26 July chaired by the Unit’s Dr Jennifer vanHeerde-Hudson, Dr Renwick was joined by a panel of electoral experts consisting of Professor Justin Fisher (Brunel University), Professor Roger Scully (Cardiff University), and Darren Hughes (Deputy Chief Executive of the Electoral Reform Society), to discuss the book’s findings and its implications for electoral reform in the United Kingdom.

The ‘personalisation’ of electoral systems

Alan Renwick began the seminar by outlining some of the book’s core arguments. He defined the personalisation of an electoral system as ‘the degree to which voters under that system can express preferences among individual candidates and the degree to which those preferences determine which candidates win election’.

In order to examine trends in such personalisation, the book analyses changes in electoral systems in European democracies since 1945. It finds that electoral reforms changed fundamentally in the late 1980s. Whereas, before that time, there was no trend towards more or less personalised electoral systems, since then, many European countries have shifted their electoral systems towards greater personalisation. Furthermore, the processes underlying these reforms have also changed. Before 1989, electoral reforms were primarily driven by parties and political elites, while public opinion received scant attention. Since 1989, by contrast, reforms have often been motivated – at least in large part – by a desire to respond to public disengagement from or disillusionment with political parties in particular, and politics more generally. Thus, while political elites continue to hold the reins when electoral reforms are enacted, they have grown more responsive – or, at least, have sought to create the impression of being more responsive – to public opinion and voters’ desire for change. Yet the book also finds that these reforms have had only limited effects. There is some evidence that voters are now using opportunities to express candidate preferences in greater numbers, and these preferences are affecting who gets elected to a greater extent than before. But if reforms were intended to tackle rising dissatisfaction with democracy or reverse growing disengagement from electoral politics, there is no evidence that they have done so.

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Is a second referendum on Brexit feasible?

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Labour leadership candidate Owen Smith yesterday became the highest profile politician to date to endorse a second referendum on Brexit. But how feasible is this? Alan Renwick suggests that a referendum of the type Smith proposes, on whether or not to accept the terms of Brexit agreed with other EU members, is possible. However, much will depend on how public opinion evolves over the coming years. It is far too early to say whether opinion is likely to shift away from Brexit or not.

In launching his bid for the Labour leadership yesterday, Owen Smith said there should be a second referendum on Brexit once the terms of the deal on future relations between the UK and the EU have been negotiated.  In doing so, he became the most high-profile politician to endorse a response to last month’s vote that is attractive to many of those who would like us to remain in the EU. But is a second referendum actually feasible?

There is no doubt that it is possible: parliament can legislate for a referendum on any topic any time it wants. But whether such a vote could deliver the outcome that its advocates intend requires careful consideration. Four key questions need to be answered.

What sort of referendum are we talking about?

To begin with, we need to ask what sort of second referendum we have in mind. Three sorts have been suggested in the course of recent discussions of Brexit:

  1. The first is simply a rerun of the referendum that we have already had. Over four million people have signed a petition saying that – because the result of the referendum was tight and, given turnout, only 37 per cent of those eligible to vote backed Brexit – a second vote should be held before confirming the decision. It is clear anecdotally that many of those taking this view are Remain supporters who are angry that Leave won last month on the basis of what they see as a deeply mendacious campaign. They hope that, now the stakes are somewhat clearer, a second vote would yield a different outcome.
  2. The second option is that last month’s result is taken as showing general dissatisfaction with our current EU membership rather than a specific desire to leave the EU altogether. Rather than triggering the withdrawal process, the government could seek a deeper renegotiation of our membership terms, then go to the country arguing for continued EU membership on those revised terms. This approach was apparently advocated by Boris Johnson last year, and he seemed to toy with it again after announcing in February that he would campaign for Leave.
  3. The third option is that we go ahead with triggering Article 50 but hold a second referendum once the negotiations have been completed, on whether to accept the deal that has been struck. This is the sort of referendum that is now advocated by Owen Smith.

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The road to Brexit: 16 things you need to know about the process of leaving the EU

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The UK has voted to leave the European Union. So what happens next? How, in practical terms, will Brexit actually happen? Alan Renwick explored some key elements of the withdrawal process before the referendum campaign began. Here, he gives a point-by-point overview of what the road to Brexit will look like. This is an updated version of a post published on 20 June, which is available here.

The effect of the referendum

1. The UK remains a member of the EU for the time being. In purely legal terms, the referendum result has no effect at all: the vote was advisory, so, in principle, the government could have chosen to ignore it. In political terms, however, ministers could never have countenanced that. The Prime Minister has said that voters’ will ‘must be respected’ and indicated the start of a process of withdrawal. We should presume that the vote to leave means that we will indeed leave (see point 16) – though there is scope for various complications along the way.

2. The immediate effects of the result are political rather than legal: the Prime Minister has announced his resignation, and a motion of no confidence has been submitted in Labour leader Jeremy Corbyn. There was speculation before the referendum that David Cameron would be out of Downing Street within days after a vote for Brexit, but his decision to stay until his successor has been elected reflects much more than just personal preference. The Cabinet Manual is clear (at paragraph 2.10) that he cannot go until he can advise the Queen on who should form the new government. Conservative party rules set out a two-stage leadership election process: first, the parliamentary party, through successive ballots, whittles the field down to two candidates; then the party membership, by postal ballot, chooses between these. Recent experience suggests this would take two to three months.

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Final EU referendum forecast: Remain predicted to win 52-48

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Stephen Fisher and Alan Renwick have developed a method for forecasting the outcome of the EU referendum based on current vote intention polling and analysis of opinion polling from previous referendums in the UK and across Europe. Their final forecast, taking account of polls published up to yesterday evening, suggests that Remain will win 52-48. However, there is a lot of uncertainty and a Leave victory can certainly not be ruled out.

The polls this week have been better for Remain than they were last week. Since this is our final forecast it makes sense for us to restrict our sample of polls to include in our polling average just the most recent poll from each company (or company-mode combination) over the last week. If we do this then our polling average finds Remain at 51 per cent after setting aside don’t knows. This is up two points from our polling average on Sunday. The two-point difference is partly due to restricting the sample from two weeks to just one, partly rounding error and partly to the fact that more of the polls than previously include Northern Ireland. So it is not clear whether the apparent movement towards Remain is real or not.

Our forecast share of the vote is 52 per cent for Remain, 48 per cent for Leave. This reflects an expectation of a 1.5-point rise in support for the status quo, based on the change that is visible on average between the final polls and the actual result in previous referendums in Britain or on the EU elsewhere. While this reflects the average historical experience we have explained here and here why the average may not be a very reliable guide.

The unreliability means there is a lot of uncertainty in our forecast. The 95 per cent prediction interval is considerably narrower than it was at the beginning of the week. But at ±10 points it is still very wide. So wide that Remain could reasonably be expected to get anywhere between 42 per cent and 62 per cent of the vote. Neither a comfortable Remain victory nor a comfortable Leave victory can be ruled out.

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