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.

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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The constitution of democracy and the pretensions of the plebiscite

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Albert Weale writes that the Article 50 case raised questions about which form of democracy can claim legitimacy –  the constitutional democracy established in the UK or the plebiscitary democracy now favoured by many Brexiteers. He discusses these two models and concludes that the only meaningful interpretation of democracy is the constitutional one. In this context the outcome did not represent the judges against the people, as some newspaper headlines suggested, but the judges for the people.

When the UK’s High Court rendered its decision on whether the government could trigger Article 50 of the Lisbon Treaty under the royal prerogative to initiate the UK leaving the European Union, it released a storm of abuse against the judiciary in the press and among cabinet ministers. ‘Enemies of the people’ snorted the Daily Mail; ‘The judges versus the people’ growled the Daily Telegraph. These were the crudest examples. Yet, for all that, they are representative of the Brexiteers’ critique. Had not the people spoken on 23 June and decided the issue by a majority in a referendum? How then, it was urged, could a group of unelected judges interpose themselves between the will of the people and the realisation of that will in policy?

For anyone who bothered to follow the issues in detail and read the judgement, the reality was, of course, quite otherwise. That the claim of the plaintiffs could properly go before the courts was agreed as much on the government side as on the plaintiffs’ side. Indeed, it is easy to see the government welcoming the challenge in order to secure legitimation for its pretension to executive authority by a court judgement in its favour. The case was not about whether Brexit should happen but how it should happen.

There are legal arguments claiming that the High Court was wrong to suppose that triggering Article 50 will alter the rights that citizens enjoy under the law of the land. Those arguments make much of the distinction between the European Communities Act as a conduit or vehicle of rights as distinct from being a source of rights. Those arguments will be for the Supreme Court to decide. But what is certainly prompted by the reactions to the judgement is a broader question of constitutional politics. As well as questions of constitutional law, there are important questions of constitutional and democratic theory. For what is at issue in the controversy was which form of democracy could claim legitimacy – the constitutional democracy established in the UK or the plebiscitary democracy that Brexiteers now favour.

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Improving the conduct of referendums: there are better options than a ‘truth commission’

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Following the EU referendum there have been demands for a ‘truth commission’ to be set up to oversee future referendum campaigns. In this post Paul Kildea argues that there are significant practical difficulties to the establishment of such a body. These include the possibility of a ‘chilling effect’ on speech, the fact that the accuracy of many controversial campaign statements would be impossible to assess and the probability that the interventions of a ‘truth commission’ would become political flashpoints in themselves. It would therefore be better to focus on other changes that can be made to better prepare voters for their choice at the ballot box such as improving the design of official pamphlets and the increased use of deliberative mechanisms such as citizens’ assemblies.

One of the many talking points to have emerged from the EU referendum in June is whether a ‘truth commission’ should be established to oversee future referendum campaigns. Numerous commentators have expressed frustration at the misleading claims made by both Leave and Remain campaigners, and feel that something must be done to protect voters against the wilful spread of misinformation. In a high profile report, the Electoral Reform Society recommended that ‘[a]n official body – either the Electoral Commission or an appropriate alternative – should be empowered to intervene when overtly misleading information is disseminated by the official campaigns’. At around the same time, a change.org petition called for the establishment of ‘an independent Office of Electoral Integrity (OEI) to factually verify the truthfulness of claims made during political campaigns…with powers to issue fines and factual clarifications’. That petition, which attracted over 165,000 supporters, has received 49 signatures since being published as an Early Day Motion in the House of Commons.

The objectives of improving the quality of referendum debates, and assisting voters to make informed choices, are worthy ones. However, the establishment of a body to monitor the content of campaign statements would be misguided. Efforts to foster informed voting should be directed elsewhere.

Concerns about false and misleading campaign statements

It is understandable why the idea of a truth commission emerged in the aftermath of the EU referendum. In a hard fought campaign, both sides were accused of misleading voters through exaggerations, distortions or outright lies. The Leave campaign was widely criticised for claiming that the UK sent £350 million a week to Brussels, and intimating that it could instead be spent on the NHS. Remain, meanwhile, was singled out for exaggerating the economic impacts of leaving the EU, including a claim that households would be on average £4,300 worse off. Other flashpoints included the release of UKIP’s anti-immigration poster, featuring a huge queue of migrants and refugees and the tagline ‘Breaking Point: The EU has failed us all.’ A survey conducted near the end of the campaign found that nearly one-half of voters (46 per cent) thought that politicians from both sides were ‘mostly telling lies’, while only 19 per cent thought that they were ‘mostly telling the truth’.

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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