PACAC’s report on the EU referendum opens important questions that deserve further attention

Yesterday, the House of Commons Public Administration and Constitutional Affairs Committee (PACAC) published a report (summarised here) on Lessons Learned from the EU Referendum. Media headlines have focused on the committee’s concerns about possible interference during the referendum campaign by cyber hackers but, as Alan Renwick writes, the report also raised other important issues that deserve further attention.

The House of Commons Public Administration and Constitutional Affairs Committee (PACAC) yesterday published a report on the conduct of last year’s EU referendum. The headlines in media reporting of this for the most part highlighted the committee’s concerns about possible interference during the referendum campaign by cyber hackers. But the MPs also draw out various other important lessons that might be learnt for any future referendums held in the UK. These deserve our careful attention.

Many of the proposals ought to be uncontroversial. The committee adds its weight to calls for extension of the so-called ‘purdah’ period – when state resources cannot be used in support of either side in the campaign – beyond the current 28 days. That would prevent any repeat of the pro-Remain leaflet that the government sent to all households last year at a cost of over £9 million to taxpayers. It would be a desirable step – though, as I suggest below, not the only necessary step – towards the creation of a level playing field in referendum campaigns.

The MPs also urge an updating of the purdah rules – written in 2000 – to reflect the realities of campaigning in the digital age. There was confusion last year as to whether those rules allowed a website promoting the government’s position that was created before the ‘purdah’ period to remain live during that period. The committee sensibly argues that his should be reviewed with a view to providing clarity.

Turning to the system for registering to vote, the committee – again very sensibly – argues for changes designed to minimise the danger of any repeat of last year’s website crash, which forced a last-minute extension of the registration deadline just days before the vote took place.

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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.

EVEL is unlikely to offer a sustainable solution to the West Lothian question

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Last month the House of Commons Public Administration and Constitutional Affairs Committee published a report on English votes for English laws in which significant doubts were raised about whether the new standing orders are a sustainable solution to the West Lothian question. The committee’s chair, Bernard Jenkin, outlines his committee’s findings and argues that the government should adopt a comprehensive strategy for the future of relationships between Westminster and the UK’s component parts.

At the outset of this parliament it was clear that the newly formed Public Administration and Constitutional Affairs Select Committee (PACAC), given its renewed remit in constitutional affairs, would have to look at English votes for English laws (EVEL).

The issue of Scottish MPs influence in Westminster was controversially amplified during the 2015 general election campaign, when the Conservatives focused voters’ minds on the possibility of SNP MPs holding the balance of power. During our evidence sessions, we were told of increasing dissatisfaction with the constitutional status quo in England and the anomaly whereby Scottish, Welsh and Northern Irish MPs can vote on matters affecting voters on England yet are unable to vote on these subjects as they affect their own constituents thanks to devolution.

Evidence suggests that of all the potential remedies to the ‘English question’ that have arisen from devolution, the principle of English votes for English laws commands consistent and substantial popular support, both north and south of the border. However, PACAC’s report ultimately concludes that while this may be true, we have significant doubts that the current standing orders are the right answer to the so-called West Lothian question, or that they represent a sustainable solution. They may be unlikely to survive the election of a government that cannot command a double majority of both English and UK MPs.

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