Following the Supreme Court ruling, what happens next?

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Following today’s Supreme Court judgement, the focus of attention shifts back to parliament.  How long will it take for parliament to pass the necessary legislation? How likely is it that the legislation will be amended? Robert Hazell and Alan Renwick assess the implications for the Brexit timetable, and the government’s negotiating strategy.

What will happen to the government’s timetable?

The government have confirmed that they will introduce a short bill, probably just one or two clauses, which it will seek to pass as a matter of urgency. Bills have occasionally been passed through parliament in a few days, or even a few hours. But that can only happen if both chambers recognise the urgency, and support the bill. Crucially, the government would need to get majority support for a timetabling motion in the House of Commons to expedite the process. That might not be forthcoming in a House where three quarters of MPs voted for Remain. (In 2012 Nick Clegg had to abandon his Lords Reform bill after the government lost the timetabling motion following a big Conservative rebellion).

In the House of Lords, the government has no majority, and no control over time. The Lords Constitution Committee and the Lords EU Committee will both want to scrutinise the bill and its implications. The Lords will not block or wreck the bill, but they will want to give it proper scrutiny; especially if they think the scrutiny in the Commons has been inadequate.

Can the bill be amended?

In November government sources suggested the bill would be ‘bombproof’. Parliamentary officials say that is a fantasy. All sorts of ingenious amendments can be tabled, on process as well as substance: requiring a white paper to be published setting out the government’s negotiating position; seeking a second referendum on the negotiated terms; requiring the government to acknowledge that Article 50 notification is revocable, etc. Debate risks exposing continuing splits within both the Conservative and the Labour parties. Because the referendum specified nothing about what Brexit means, the battle continues between Brexiteers, who mostly support a hard Brexit, and Remainers hoping for a soft Brexit. Meanwhile Labour remains split on how to respond to the referendum outcome – to respect the will of the 52 per cent (who make up a majority in constituencies such as Stoke-on-Trent Central, where the forthcoming by-election will be hard fought), or speak up for the majority of Labour voters, who backed Remain. Speaking in parliament after the judgement, Labour’s Shadow Brexit Secretary, Keir Starmer, indicated that Labour would seek to amend the Article 50 legislation to require a white paper on the government’s plans, stipulate mechanisms for parliamentary scrutiny of the negotiations, and hold a ‘meaningful’ vote on the final deal. Legislation gives all groups in parliament multiple opportunities to table amendments or extract promises or impose conditions on the government during its passage.

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The role of referendums in the UK: the question of balance

blog-photoOn 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.

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The role of referendums in the UK: the question of information

blog-photoOn 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 offif 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.

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We need to talk about our democracy

me 2015 (large)Meg-RussellRecent days have seen ferocious attacks against the roles of both judges and parliamentarians in our democratic system. Alan Renwick and Meg Russell write that this assault is just the latest in a series of signs that the quality of our democracy is under threat. In light of this they argue for concerted efforts to defend that democracy: by pushing back hard against immediate challenges to the rule of law, resisting the lures of populism, and listening to those tempted by populist and anti-political rhetoric.

Thursday’s High Court ruling on Article 50 (assuming it is confirmed by the Supreme Court), means no more than that the government cannot legally begin formal Brexit negotiations without parliament’s consent. The judges did not question the validity of the referendum result or try to block the UK’s withdrawal from the EU – they just clarified the law. Parliament – as demonstrated by many MPs’ reactions – will almost certainly feel politically bound to respect the referendum outcome and authorise the Article 50 trigger.

Yet, as is now well known, the judgement has unleashed a wave of vitriol from parts of the press, from some politicians, and even from certain government ministers. The Daily Mail labelled the judges who delivered the ruling as ‘enemies of the people’. The Telegraph presented the issue as one of ‘judges vs the people’. Nigel Farage talks of a ‘great Brexit betrayal’. The Communities Secretary, Sajid Javid, referred to the case as ‘a clear attempt to frustrate the will of the British people’. Hearing such reactions, many ordinary citizens are understandably outraged by what they perceive as the scheming duplicity of an arrogant governing elite.

This gross overreaction is deeply worrying and potentially dangerous. We tend to presume that the democratic system in the UK is rock solid. Yet the democracy indices produced by the Economist Intelligence Unit and Freedom House have charted declining democratic quality in recent years in many long-standing democratic countries, including Austria, Belgium, and the Netherlands. In the United States, commentators and senior political scientists are greatly troubled by how Donald Trump’s behaviour and rhetoric of rigged elections could weaken the foundations of the democratic system. Democracy faces similar challenges here in the UK too. In light of this, we need to cool the passions and encourage a national conversation about what democracy is and what sustains it.

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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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