The future of referendums: what role should they play and how should they be conducted?

me-2015-large-e1485255919145.jpgTwo decades have passed since there was last a serious consideration of how the UK uses referendums. For this reason, the Constitution Unit established the Independent Commission on Referendums to examine whether and how the way in which referendums are regulated in the UK should be changed. Ahead of a public event in Edinburgh, the Commission’s research director, Dr. Alan Renwick, explains its terms of reference. 

The referendum is now entrenched as a part of the UK’s political system. The principle that a referendum is needed before some fundamental constitutional changes – notably in relation to sovereignty – are made has become well established. It seems likely that politicians will continue from time to time to find it useful to manage conflicts by proposing to put certain decisions to the people.

Yet, crucially important though referendums are, there has been little concerted thinking of late about how they should be conducted. Two inquiries carried out in the 1990s – by the UCL Constitution Unit’s Nairne Commission and by the Committee on Standards in Public Life – led to the creation of some basic rules, laid down in the Political Parties, Elections and Referendums Act 2000. But these rules were always incomplete: for example, they say nothing about who is entitled to vote in a referendum. They are also now two decades old. Much has changed in the intervening years – not least through the rise of the internet and social media. Four major referendums have also been held in that period – on Welsh devolution (2011), the Westminster voting system (2011), Scottish independence (2014), and EU membership (2016) – from which lessons can be learned. Many observers have been dismayed by the conduct of those referendums, whether they agreed with the results or not. A careful review of whether we could do better is therefore overdue.

That is the task of the Independent Commission on Referendums, established by the Constitution Unit last autumn to examine the role and conduct of referendums in the UK and consider what changes might be desirable. Comprising twelve eminent individuals with diverse perspectives on referendums, including current and former parliamentarians, journalists, regulators, and academics, the Commission is due to report this summer. It is keen to hear as many views as possible, it is holding seminars in all of the UK’s capital cities. The Edinburgh seminar is the next in this series, co-hosted with the Royal Society of Edinburgh next Monday. Continue reading

Digital Communication and Elections: Online targeting of voters on social media


In recent elections and in the EU referendum, concerns have been raised about the online targeting of voters on social media and the use of voter data. At a Constitution Unit seminar, Dr Martin Moore spoke about the shifting nature of online campaigning and examined its impact on the regulatory and legal landscape in the UK. In this blog post, Michela Palese summarises what he said.

Election campaigns have shifted significantly online in recent years. This reflects trends in news and media consumption. Nowadays, around 90% of British adults are online and 84% use social media, with approximately 30 million Britons using Facebook on a regular basis. Furthermore, around three quarters of internet users get their news online and four in ten use social media for news. It is therefore unsurprising that campaigning has shifted to the digital world, given the ease with which voters can be reached in a direct and highly personalised way.

Funding has shifted to digital as well. Campaigners admit that digital is where elections can be won and lost, and this is proven by the successful use they have made of social media. For example, Dominic Cummings stated that the Vote Leave campaign spent around 98% of its budget on digital campaigning. Jim Messina, a former political advisor to Barack Obama and founder of consulting firm The Messina Group, claimed that Facebook was ‘the crucial weapon’ in the Conservative Party’s successful general election campaign in 2015. In the last general election, by contrast, the Labour Party invested significant effort in social media advertising, with its videos being viewed by around ten million internet users.  

At a Constitution Unit seminar, Dr Martin Moore, Director of the Centre for the Study of Media, Communication, and Power at King’s College London, argued that the changing nature of campaigning has highlighted some of the shortcomings in the UK’s regulatory and legal landscape. In particular, Moore noted the concerns which have been raised about the lack of fairness and openness in how campaigns are conducted online. Campaigners have, in fact, much more leeway in what they can do in the digital realm than on print or broadcast platforms. In 2017, both the Information Commissioner’s Office and the Electoral Commission opened investigations into how funds were spent during the EU referendum and into the manner in which voters were targeted on social media. Continue reading

The Independent Commission on Referendums: who, what, why, and how

jess.sargeant doneOn 17 January, Jess Sargeant attended a Constitution Unit seminar entitled The Independent Commission on Referendums: who, what, why, and how. The aim of the event was to discuss the work of the Commission, which has no affiliation to any political party or campaign groups, but which does receive research support from the Constitution Unit. The session sought to identify some of the referendum-related problems that the Commission would have to grapple with. This post sets out the main talking points of the seminar. 

The Independent Commission on Referendums was established by the Constitution Unit in August 2017 to review the role and conduct of referendums in the UK. The Commission consists of 12 distinguished members representing a range of political opinions, with expertise extending across all the major UK referendums of recent years. The Commission first met in October 2017 and meets monthly to deliberate on the issues. It will produce a report and detailed recommendations in summer 2018.

On Wednesday, the Constitution Unit held a seminar about the work of the Commission. Speakers included the Commission’s Chair, Sir Joe Pilling; its Research Director, Alan Renwick; and Sue Inglish, who is both a Commission member and former Head of Political Programmes at the BBC. The aim of the event was to inform the audience about the key issues that the Commission aims to address and to gain audience members’ feedback on them. Sarah Baxter, Deputy Editor of the Sunday Times, also spoke, giving an outsider’s perspective of the Commission’s task along with her reflections on past referendums. Continue reading

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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Australia’s postal survey on same-sex marriage: a flawed process that should not be repeated

Legislation legalising same-sex marriage completed its passage through the Australian parliament last week. This followed a strong vote in favour of the change in a postal survey, held from September to November. Paul Kildea argues that, while the survey proved effective in bringing about marriage equality, the process was deeply flawed and should not be repeated.

Australia’s political year ended on a high with the legalisation of same-sex marriage. There were jubilant scenes in the House of Representatives as it approved a change to the legal definition of marriage from ‘the union of a man and a woman’ to ‘the union of 2 people’. The first weddings will take place on 9 January.

The road to marriage equality was convoluted and messy. For many years politicians resisted growing community calls for change, and in the end opted to hold a national poll as a precursor to legislative action. This was constitutionally unnecessary and expensive, but the resounding result – 61.6% of respondents supported same-sex marriage – provided a clear endorsement that parliament could not ignore.

What is particularly noteworthy about this national poll is the form that it took: it was not a referendum or a plebiscite, but rather a public opinion survey run by the Australian Bureau of Statistics. It was non-binding, voluntary (voting in elections is compulsory in Australia), and conducted entirely by post over an eight-week period from September to November this year. The postal survey was, in design and execution, unlike any previous direct democracy exercise in Australia. Now that it is behind us, a full appraisal is necessary. This post will argue that, while the survey proved effective in clearing the political path to marriage equality, it was deeply flawed as a process and should not be repeated.

The long, winding road to same-sex marriage

It has been known for some time that the path to marriage equality in Australia runs through the legislature. In the past there had been doubts about the national parliament’s ability to legislate for same-sex marriage, but these were dismissed by the High Court in a 2013 ruling. Since then, reform has been in the hands of politicians. Advocates called on them to amend the Marriage Act 1961 (Cth) which expressly defined ‘marriage’ as ‘the union of a man and a woman’.

Yet, in August 2015, the conservative Prime Minister, Tony Abbott, resisted calls to legislate and instead announced that his government would hold a non-binding plebiscite on the matter. This was highly unusual. While Australian governments hold referendums on constitutional amendments from time to time (44 such votes have been held since 1901), they only rarely conduct plebiscites on other matters. In fact, history yields just three precedents: two votes on compulsory military service in 1916 and 1917, and one on the national song in 1977. This is consistent with Australia’s tradition of parliamentary democracy in which elected representatives are entrusted to make decisions on most issues. In line with this, Australia’s parliament has a long history of legislating on matters of marriage and divorce.

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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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