On 23 June 2016 voters went to the polls on the question: “Should the United Kingdom remain a member of the European Union or leave the European Union”? This report identifies the lessons that can be learned from the handling of that referendum, and makes recommendations which would improve the legislation and regulatory framework for referendums, as well as for the government, civil service and Electoral Commission in the effective conduct and delivery of any future referendums.
The UK is a representative democracy, but like in many other democracies, referendums have become part of the UK constitution, used over a dozen times since the 1970s. Since being introduced in the UK as a democratic device, referendums have become accepted as the most convenient means of deciding issues of key constitutional importance. Referendums are by their nature divisive. A referendum is less satisfactory in the case of what might be called a “bluff call” referendum in order to close down unwelcome debate, like the referendum on EU membership. The Government was against the suggested proposal, the consequences were less clear, and the Prime Minister of the day would not implement the outcome. There was no proper planning for a Leave vote so the EU referendum opened up much new controversy and left the Prime Minister’s credibility destroyed. Referendums are the creations of Parliament and the Government. Parliament and the Government are therefore accountable and must take responsibility for the conduct of referendums, and the fairness of the question, and there should be proper information about, and planning for, either outcome.
Before the referendum, the Government argued that section 125 of the Political Parties and Referendums Act (2000) (PPERA), which contains the provisions for pre-referendum ‘purdah’, would impair the functioning of government, and proposed in the EU Referendum Bill that its provisions should be set aside. PACAC and the Electoral Commission opposed this, and in September 2015, the House of Commons amended the Bill accordingly. Fears that the application of section 125 would have potentially problematic consequences for the conduct of Government proved groundless. The section 125 restrictions on government were of critical importance to the fair conduct of the referendum. The provisions of section 125, while imperfect, have been successfully applied in numerous referendums since 2000. The purdah provisions of section 125 of PPERA play a key role in the fair conduct of referendums and must continue to do so in future referendums. PACAC supports the Law Commission’s proposals to consolidate the law regulating referendums, and the establishment of a generic conduct order that can be applied to future referendums. The section 125 restrictions should be clarified and modernised to reflect the digital age, and extended to cover the full ten weeks of the referendum period. There should be sanctions for breach of section 125, and the Electoral Commission should have powers to police its application.
The Register to Vote website crashed on the evening of 7 June 2016. The Government has stated that this was due to an exceptional surge in demand, partly due to confusion as to whether individuals needed to register to vote. The Government should develop an online service to enable people to check whether they are already correctly registered. However, the Government clearly failed to undertake the necessary level of testing and precautions required to mitigate against any such surge in applications. The Association of Electoral Administrators criticised the government and the Electoral Commission for a clear lack of contingency planning.We do not rule out the possibility that there was foreign interference in the EU referendum caused by a DDOS (distributed denial of service attack) using botnets, though we do not believe that any such interference had any material effect on the outcome of the EU referendum. Lessons in respect of the protection and resilience against possible foreign interference in IT systems that are critical for the functioning of the democratic process must extend beyond the technical. The US and UK understanding of ‘cyber’ is predominantly technical and computer-network based, while Russia and China use a cognitive approach based on understanding of mass psychology and of how to exploit individuals. We commend the Government for promoting cyber security as a major issue for the UK. We recommend permanent machinery for monitoring cyber activity in respect of elections and referendums be established, for promoting cyber security and resilience from potential attacks, and to put plans and machinery in place to respond to and to contain such attacks if they occur.
On the whole, the referendum was well run and competently administered by the Electoral Commission. We recommend that the Electoral Commission undertake a review of the designation process of the two official campaigns, to examine where greater transparency could be achieved. This review should include consultation with campaigners from each of the campaigns that sought designation during the EU referendum. It 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.
During the run-up to the EU referendum, there were many occasions when it appeared to many that civil servants were being drawn into referendum controversy. This damaged the reputations of the Civil and Diplomatic Services for impartiality. We regret the Government did not accept the recommendation of our predecessor Committee, PASC, in relation to the provision of a new paragraph in the Civil Service Code, which would have served to clarify the role and conduct of civil servants during a referendum campaign. This proportionate and sensible step, would have served to promote clarity and a clear understanding of the role for civil servants at the very outset of the EU Referendum campaign, thereby avoiding some of the controversies which arose during that campaign. The manner of the presentation of government reports, particularly those from the Treasury, and the decision to spend £9.3m on sending a leaflet, advocating a Remain vote, to all UK households, were inappropriate and counterproductive for the Government.While the Government did not support a Leave vote, they nonetheless had a constitutional and public obligation to prepare for both outcomes from the referendum. In 1975, Whitehall undertook contingency planning for a possible vote in favour of withdrawal from the European Communities and there was no adequate reason for a refusal to prepare for either eventuality in 2016. Though we were 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 formally proscribed by the Government. We recommend that in the event of future referendums civil servants should be tasked with preparing for both possible outcomes. The presumption should be that the sitting Prime Minister and his/her administration will continue in office and take responsibility for the referendum result in either eventuality. We recommend that the Government heed the lessons from this referendum of the implications of the use of the machinery of government during referendums on public trust and confidence in the institutions of government.
11 April 2017