Three Ways to Improve Referenda

Whilst it’s right that Vote Leave are being fined, it’s absurd to suggest that this renders the result invalid. That being said, this – and other events before, during and after the referendum – do highlight a number of areas where our rules around referenda could helpfully be strengthened.

First though, let’s get the Vote Leave situation out of the way

As I said above, there is no reason to doubt the outcome of the investigation. Vote Leave seem unambiguously guilty and deserve the punishment they’ve received. However, it’s absurd to suggest that this renders the result invalid, for a number of reasons:

– Both the official Remain campaign and the Liberal Democrats have previously been found by the Electoral Commission to have broken the rules. Yes, it was of a smaller magnitude, but there is no legal grounding to say ‘breaking the rules by X amount is OK; breaking it by Y amount means something is invalid.’ Both sides broke the rules and to an extent that warranted >£10,000 fines being imposed.

– The amount involved is a small fraction of the total campaign budgets. Furthermore, the offence is not about exceeding spending limits, but about undue coordination. It seems unlikely this would have changed the result.

– More importantly, Remain outspent Leave by almost 50%, with Remain spending over £16m to Leave’s £11m. This doesn’t include the additional spending that Remain was able to access, such as the tax-payer funded £7m mailshot of pro-Remain literature sent to every UK household just before the official campaign began. If spending determined the result, Remain would have won.

In short, Remain heavily outspent Leave and still lost. The idea that undue coordination on less than 7% of Leave’s funds undermines the result just doesn’t stand up. That’s not to defend the activity or to oppose the fine (or even heavier penalties, as I discuss below), but there are no grounds, legal or pragmatic, to say it renders the referendum result invalid.

Regarding the allegations that the Electoral Commission is pro-Remain, these seem spurious in the context of the Vote Leave investigation. The Commission does, however, seem to be on shakier ground in its refusal to investigate allegations of similar behaviour, lodged by Priti Patel, into Remain. None of us except the Commissioners themselves can know the real reasons behind the decision to not even investigate these, but given the public pro-Remain statements made by the Chair and other Commissioners (whilst in office) they are at the least responsible for creating a perception that their personal views may have biased that decision.

So, how to improve things?

​The rule-breaking incidents are just one of a number of issues, where the current rules seem less than ideal. In particular, I’d suggest three key changes for any future referenda:

1. The Act that authorises a referendum should be explicit that the result is binding on the government and should empower the government to take action as a result of it – in this case, trigger Article 50. I don’t disagree that with the legal accuracy of the Supreme Court’s ruling, but the whole situation was very unsatisfactory, given that the referendum was clearly presented as binding at the time (even if technically it wasn’t). If we’re going to have referenda, let’s use the same Act that creates themto make them binding. More complex consequences might still need separate follow-on legislation: in the Brexit case, for example, one might imagine that the Referendum Act would only trigger the invoking of Article 50, with separate Leaving the EU Acts and Customs Acts still being necessary to determine the precise terms.

2. Stronger penalties for breaking the rules. In a general election, it’s relatively easy to rerun the election in a single seat: it’s not too costly and it’s rare that it would impact the overall result. Rerunning a referendum would be much harder. In addition to the cost (in the tens of millions), there would by many negative consequences (increased societal division, for example). Furthermore  things may have already happened. Imagine if the winning side in Ireland’s gay marriage referendum had broken the rules – what would happen to all the same-sex marriages conducted in the interim? Would they be annulled? This is even before we get into the difficulties of arguing about the degree of rule-breaking that would trigger a rerun – a single wrong receipt, for example? What about in a situation like this, where both sides broke the rules?

A much better solution would be to create much steeper penalties for rule-breaking, on individuals as well as campaigns. I’m talking about multi-year jail sentences, potentially of five years or more, similar to those we impose for perjury. This would provide a very clear incentive for individuals on all sides to stick to the rules.

3. The government shouldn’t be allowed to use civil service resources to campaign for one side or the other. Remain received a huge advantage from the use of government resources to openly campaign for Remain – not just the £7m mailshot, but the full force of civil service policy making, such as the production of the Treasury’s dossier on the costs of leaving. Prior to purdah, civil servants were allowed to openly campaign on social media for Remain, but not for Leave. Leave only started to really gain ground once the official campaign period began and proper spending rules were imposed.

The fact that this was allowed seems very much an anomaly rather than something that anyone could justify on an objective basis. It’s completely out of line with how the government is usually allowed to use public resources. Just as the government of the day can’t use the civil service or public facilities for party political purposes – at any time, not just during the campaign period – they shouldn’t be allowed to use them to advocate for one side of a referendum question, either, once the enabling Act has been passed.

If these three rules were put in place, it would mark a significant improvement in the conduction of proceedings of any future referendum. There would be absolute clarity about the legal status; there would be a much stronger deterrent against rule-breaking and both sides would have a level playing field. Overall, they would not just increase clarity and certainty and bring the arrangements more in line with those that we observe for ordinary elections.