What new challenges does the changing nature of campaigning pose for referendum regulation?

me-2015-large-e1485255919145.jpg jess-sargeant-resizedEarlier this year, the Constitution Unit established an Independent Commission on Referendums to review the role of referendums in British democracy – whose work will be discussed at a public seminar next week. In this blogpost, Alan Renwick and Jess Sargeant examine some of the difficult questions the commission will have to consider. Their focus is on the way in which political campaigning has changed since 2000, when the current legislation regulating referendums was enacted.  

The UK’s current legislation regulating the conduct of referendums – the Political Parties, Elections and Referendums Act (PPERA) 2000 – was designed and introduced almost two decades ago. Since then, technological innovations have led to new ways of campaigning and communicating. These changes create new challenges for referendums regulation. While most of these challenges are not unique to referendums – they apply equally to elections – one key task of the Independent Commission on Referendums is to assess how well the existing rules work in the context of new digital developments and to consider solutions to some of the problems posed by the modern world. This blog post explores just some of those challenges.

Financial regulation doesn’t reflect the modern world

Increasingly, political campaigners are using social media to communicate with voters. We know this because we can observe political adverts on Facebook, Twitter, and even Instagram during elections and referendum campaigns. However, we have very little information about how much money they are spending to do so. This is because financial regulation of political campaigns, first designed in 2000, has yet to be updated to reflect the nature of campaigning in the modern world.

Registered referendum campaign groups are required to submit returns of referendum expenses. The purpose of these transparency requirements is to allow campaign spending to be scrutinised by both the Electoral Commission and the public. Financial transparency requirements apply equally to expenses incurred for online and for offline campaigning. However, how this is reported makes scrutiny of online spending difficult. There is no separate category for spending on social media: such spending is reported as either ‘advertising’ or ‘unsolicited material sent to voters’. Furthermore, within this category it is only identifiable if spent directly with the platform, such as Facebook, Twitter, or YouTube. Spending through agencies remains opaque, with no breakdown of how money is used. In this area, it could be argued that transparency requirements are rendered meaningless.

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Referendums in UK democracy: how should they work in practice?

The Independent Commission on Referendums, established by the Constitution Unit to review the role of referendums in UK democracy, has now met twice. One of the issues they are considering is rules for how referendums should work in practice. The Commission’s Research Assistant, Jess Sargeant, summarises the issues for consideration.

In a previous blog post I explored some principles that could be used for deciding when a referendum might be appropriate. The Independent Commission on Referendums is also considering how referendums should work in practice. The following post explores some key practical questions.

Should there be rules for when a referendum is required, permitted or prohibited?

The UK is unusual among comparable democracies in that referendums are held ad hoc: there are very few standing rules on when referendums are to be held. This means, at least in theory, that there are no restrictions on matters that a referendum may be held on: it could be held on any issue within parliament’s legislative competence.

Many other democracies have provisions in their constitutions setting out when a referendum must be, can be, or cannot be held. Constitutional issues are the most common category of issues on which a referendum is required. For example, Ireland, Australia and Japan require referendums on any bills amending the constitution. In Austria, Spain, Lithuania and Iceland amendments to certain key parts of the constitution must be approved in a popular vote. There are also examples of referendums being required on other issues: Denmark has mandatory referendums on transfers of sovereignty and changes to the voting age.

Where referendums are not required on constitutional amendments, there is often a mechanism allowing a parliamentary minority to trigger one, as is the case in Italy, Austria and Spain. In some democracies, legislation can be put to a referendum if requested by a body so empowered by the constitution. This could be the parliament, as in Denmark and Austria, the president, as in Ireland and Iceland, or groups of citizens, as in Italy and the Netherlands. Where referendums are permitted on legislation, certain types of legislation are often exempt: most commonly, finance, budgetary and tax laws or legislation implementing treaties.

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When is it appropriate to hold a referendum?

The Independent Commission on Referendums, established by the Constitution Unit to review the role of referendums in UK democracy, is holding its second meeting today. At today’s meeting the members are focusing on whether principles can be identified for deciding when holding a referendum is appropriate. In this post the Commission’s Research Assistant, Jess Sargeant, summarises the issues for consideration.

The first UK referendum, with the exception of polls at a very local level, took place in 1973 in Northern Ireland. Since then there have been three UK-wide referendums, and ten referendums covering parts of the UK. Yet the question of what role referendums should play in the UK’s system of democracy remains unresolved. This is the question for discussion at today’s meeting of the Independent Commission on Referendums.

In this post, I explore the question of whether principles can be identified for deciding when a referendum is appropriate. I do not attempt to draw conclusions, or foretell those of the Commission, but simply put forward proposals for consideration.

How are democratic decisions best made?

To answer the question of what role referendums should play in a system of democracy, one must first consider how political decisions are best made. This depends on how one conceives of democracy. Broadly speaking there are three alternative conceptions: direct, representative, and deliberative.

According to the theory of direct democracy, decisions are most democratic when preferences are expressed directly by the people; representative institutions will distort popular will. In contrast, proponents of representative democracy argue that collective decision-making requires participants to dedicate significant time and resources to the process. It is not feasible for all citizens to do that, so decisions are best made by elected representatives. The third conception is deliberative democracy, according to which decisions should be made through processes in which everyone’s voice is heard and arguments and evidence are thoroughly considered. This conception is commonly associated with citizens’ assemblies and citizens’ juries.

Although these visions of democracy are often presented as mutually exclusive, most modern democracies incorporate elements of all three. Rather than being diametrically opposed, different forms of democracy can complement each other and be used to address disadvantages or shortcomings of other methods of decision-making. Regardless of which conception of democracy one subscribes to, it may still be possible to identify certain circumstances in which referendums might be appropriate.

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