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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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

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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Many referendums on constitutional change on the horizon for Ireland

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If Ireland’s new government can stay in power, its term looks set to be dominated by one referendum after another. Five referendums have been promised, with the possibility of even more. David Kenny discusses the issues that Irish voters are set to be consulted on over the next few years. He writes that recent experience suggests that referendum fatigue is likely: whilst high-profile issues will continue to generate significant interest, many of the proposed referendums are unlikely to be greeted with enthusiasm by the electorate.

Any change to the 1937 Constitution of Ireland (Bunreacht na hÉireann) – however minor – requires ratification by a majority of voters in a referendum. In the term of the previous government, the Irish people voted on six such referendums, on issues as diverse as the abolition of the upper house of parliament; the provision of same-sex marriage; and reduction in the pay of judges in line with other public servants.

This has not sated the desire for constitutional reform; Ireland’s new government has promised five referendums within its lifetime, with the possibly of several more besides.

In early May, after months of negotiations, a deal was formed to return Fine Gael – the major party in the previous coalition government – to power as a minority government. The result of these negotiations for the support of several independent TDs (MPs) and the acquiescence of main opposition party Fianna Fáil was a detailed Programme for Government, as well as memorandums of understanding between the major parties. These are designed to avoid political conflicts that would threaten the stability of the government. Only time will tell if they will succeed; recent disagreement between Fine Gael and independent cabinet ministers over a Private Members’ Bill on abortion raised doubts as to the lifespan of the government.

If the government lasts, however, we will see many constitutional referendums. The Programme for Government pledged referendums on four discrete subjects, to be held at some point during the government’s term: the constitutional crime of Blasphemy; the ‘women’s place in the home’ clause; the Unified Patent Court; and the constitutional standing of the Ceann Comhairle (the chairperson of the lower house of parliament).

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Is there a future for referendums?

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The EU referendum has led to doubts about referendums as an instrument of public policy. Albert Weale suggests that the good conduct of referendums depends on the question being well defined and voters having easy access the relevant evidence. The EU referendum failed both of these tests. Future referendums should be on well defined questions and steps should be taken to provide access, in one convenient place, to the basic data necessary for votes to make a decision.

After the Brexit referendum result, many of those who think of themselves as democrats but who voted Remain are having doubts about referendums as an instrument of public policy. Some are appealing to the purely advisory status of any referendum in the UK constitution. Those who were already sceptical of the use of referendums now have their beliefs confirmed. However, one case no more makes a good argument in political theory than one swallow makes a summer. We should reflect on the Brexit referendum process, but we need to ask how we can define well justified principles governing the use and conduct of referendums in the light of that reflection.

The basic case for holding a referendum is that there are some issues that arise on the political agenda of societies that cannot realistically be handled by the normal processes of contest among political parties. Existential issues that change the standing and status of the country typically fall into this category. Extensions to the power of the European Union or secession are two obvious examples. Even in these cases, however, depending on history and tradition, referendums are not always the answer. In societies governed by strong principles of legal constitutionalism, supreme courts decide such matters, as has been true of the German Constitutional Court over successive European Union treaties. However, in political systems where supreme courts cannot play this role, referendums may be the only device available. What matters in such cases is that they should contribute to resolving the issue, at least for some years, not worsening the problem.

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