EU Referendum: A Letter To The Electoral Commission

Despite the widely publicised recommendation last year by the Electoral Commission over a change in referendum question, many newspapers still refer to the referendum as a "In / Out" option leading to potential confusion. Thus the following letter has been sent to the Commission;

Dear Electoral Commission.

I am writing to you regarding aspects of the media coverage of the forthcoming EU referendum which I feel could be improved.

On 1st September 2015 the Electoral Commission recommended a change to the proposed question from an “In/Out” question to a more balanced “Leave/Remain” response. The Government and Parliament readily agreed to these recommendations.

The reason for these recommendations was highlighted by Jenny Watson, Chair of the Electoral Commission in the press release. She noted:

“Any referendum question must be as clear as possible so that voters understand the important choice they are being asked to make. We have tested the proposed question with voters and received views from potential campaigners, academics and plain language experts. 

‘Whilst voters understood the question in the Bill some campaigners and members of the public feel the wording is not balanced and there was a perception of bias. The alternative question we have recommended addresses this”.

Given that the Electoral Commission’s recommendations were widely reported at the time by the media, it is of some concern that the media and newspapers in particular continue to frame their referendum pieces in an “In / Out” context rather than the actual “Leave / Remain” options on the ballot.

This has potential for confusion for voters which may undermine the very balance that the change of question was attempting to address. As the Electoral Commission revealed in its ‘Media content analysis’ report in August 2011 on the AV referendum in May 2011: “The news media play a crucial role in informing voters about the issues, alternatives and candidates in an election”.

In addition according to the Editor's Code of Practice issued and enforced by IPSO, "the press must take care not to publish inaccurate, misleading or distorted information". As the question was changed for the sake of "clarity" continuing to frame the debate as "In / Out" is potentially misleading.

With this in mind I feel there is a case that the Electoral Commission reminds editors of newspapers of their responsibilities, as part of the process of a free and fair referendum, and that they try to avoid unintentional and unnecessary confusion by accurately reporting the question.

I thank you for your attention to this matter.

Yours sincerely

TBF

EU Referendum: Another Reason Why June 2016 Poll Is Unlikely

Despite frequent articles from journalists of the legacy media suggesting there could be a referendum as soon as June 2016, the Electoral Commission has made it perfectly clear (page 17) this cannot be possible as ten months must elapse between Royal Assent of the Referendum Bill and the poll.

The Electoral Commission recommends a six-month gap between passing of the law and the start of the referendum campaign. If then the referendum campaign includes designation, the combined campaign period would need to be four months, (page 6). Four months plus the six-month gap gives us the ten months.

With the Referendum Bill unlikely to receive Royal Assent before Christmas and the recommendation of a ten month window, as highlighted by this blog and EU Referendum, all but rules out a 2016 poll and certainly it rules out a June 2016 poll.

The Electoral Commission is a statutory body and thus its recommendations can be subject to judicial review. Recommendations have to be taken seriously as evident by its statutory advice over the referendum question change. The lack of reference to the Electoral Commission's recommendations by the UK media does bring into question its integrity and its less than candid nature.

Yet in addition to the Electoral Commission recommendations, another factor comes into play regarding a June 2016 referendum and it is one which has a more political significance than a legal one.

June 2016 is when UEFA is hosting its football championships in France. The draw, which involved three of the four Home Nations was made on Saturday, where one of the fixtures will be England versus Wales. Here then we will have a month of football in European wide tournament held in France - an EU member state which is a crucial and pivotal part of the EU.

With media build up to a tournament involving England it would seem inconceivable that Cameron is going to dump a referendum on the UK during a month long celebration of football particularly when a significant number of the electorate will have priorities more focused in a warm month on football, beer and barbecues.

A referendum held in these circumstances would almost certainly impact on turnout, and the results could be heavily influenced by how successful, or indeed not, the Home Nations performed during the tournament. Cameron would not want the referendum result to be influenced on the uncertainties of the mood of the nation over the fortunes of the unpredictability of football.

How a football tournament can influence politics can be seen during the debate on Scottish devoltuion in the 1970s:

The sharp rise in nationalist support, which registered in the first of the two general elections of 1974, prompted the Labour Prime Minister, Harold Wilson, to make a commitment to devolution.

On June 22 Labour's Scottish executive met to ratify the Downing Street proposals on devolution. Unfortunately this was also the day of the Scotland V Yugoslavia World Cup football match and only 11 members turned up. Most of those who stayed away to watch the football were pro-devolution. This gave the anti-devolutionists their chance to throw out the proposals.

Perhaps learning the lesson we see four years later, in 1978, that the Hamilton by-election was moved to Wednesday 31st May 1978 as the opening game of the 1978 World Cup was on the Thursday 1st June. This was the last time a by-election was not held on a Thursday.

In addition to Euro 2016, we see that a month later in August the 2016 Olympic games will be held in Brazil (and the Paralympics in September). Following on from a media narrative on how England and the other Home Nations have conducted themselves, attention will then turn to the Olympics with the lead up consisting of headlines of variations on the obligatory theme of whether the stadia and infrastructure has been built yet.

2016 will be a summer of sport. With a Prime Minister having such a weak hand in terms of his EU referendum it's very unlikely he is going to risk having his message overwhelmed by a narrative concerned with other priorities.

EU Referendum Question Is Set To Change

Following on from concerns by the Electoral Commission this morning over the wording of the current yes/no question, Cameron has announced that he is prepared to change the question in line with the advice:

[The EC] said that the question should set out the alternative option of Britain "leaving the European Union", while giving people the option of choosing whether they "leave" or "remain" rather than a simple "Yes/ No".

Within half an hour of the announcement a Downing Street spokesman confirmed that the government will table an amendment changing the question in line with the commission's proposals.

The Electoral Commission has always been consistent, since 2013, on the question it prefers:

Should the United Kingdom remain a member of the European Union or leave the European Union?'

The responses would be ‘Remain a member of the European Union’ / ‘Leave the European Union’.

Research participants found this the most neutral of all the versions tested.

Given the report stage of the Referendum Bill comes up next week where further amendments can be made, the EC's timing also seems perfectly reasonable. 

Interestingly this leaves Arron Banks's pet project, TheKnow.EU, in a rather awkward position. This blog has yet to be impressed with "The Know". Their Twitter account contains misleading and selective quoting of newspaper articles, jingoistic rhetoric, and as Autonomous Mind says: "completely inaccurate assertions about the additional EU budgetary contribution demanded of the UK".

Despite the name it's clear Banks knows nothing about the EU and now it seems he knows nothing about getting the name right for a referendum either. It's entirely his fault - the consequence of being presumptuous by jumping in before the Referendum Bill has even been passed. If they can't get their own name right then there's not much hope for anything else from them.

The jostling for position by Farage, Banks and Mathew Elliot for leading the campaign to leave has only revealed what a low grade position we are currently in. Everything from Farage announcing the launch of a "no" campaign on the day the EC releases its advice to fundamentally misunderstanding the terms of being designated the official campaign to leave shows a complete lack of understanding of even the basics of what a referendum campaign will look like.

The location of amateursville is being determined by a triangulation of egos; Farage, Elliot and Banks. They want it about them not us and if it continues we will lose.
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EU Referendum: The Wilson Fudge Part II

 

On May 27th, we fully expect proposals for an EU referendum to be included in the Queen's speech. There are of course some doubters who are convinced that Cameron will renege - an understandable sentiment after his "cast iron" betrayal - but political reality says this time he will have no choice but to follow through with his promise.

Cameron has reiterated his promise publicly and consistently since the election and also to various media outlets. Should he not deliver his credibility would be shot to pieces, he will lose all political authority and his backbenchers would get rid of him sharpish.

So whether we like it or not an EU referendum is what we now face. In ideal world we would like the referendum to be free and fair. The reality is that by their very nature referendums never are. They are crude, blunt instruments which are easily manipulated by governments. It is for very good and obvious reasons that they are banned in Germany under their constitution, Basic Law.

Inevitably, therefore the eurosceptic movement faces a difficult and unfair battle, but it's not unwinnable. In our view, looking back at the lessons of 1975 the greatest threat is actually a lack of coherence from our own side and that is something which can be under our own control.

Another cause for optimism is that the way of manipulating a referendum by framing the question in such a way as to encourage a certain result is far more difficult. Here we have a defence against such manipulation in the form of the Electoral Commission (EC). It advises Parliament on what will be the most neutral referendum question, which it has already done:

The Commission’s recommendations therefore highlight an important decision for Parliament: whether to retain or move away from the UK’s recent experience of  referendum questions using ‘Yes’ and ‘No’ responses.

If Parliament wants to retain the use of ‘Yes’ and ‘No’ as response options to the referendum question, then the Commission has recommended that that the question should be amended to:

'Should the United Kingdom remain a member of the European Union?'

If Parliament decides not to retain a ‘Yes’ and ‘No’ question, the Commission has recommended the following referendum question:

'Should the United Kingdom remain a member of the European Union or leave the European Union?'

The responses would be ‘Remain a member of the European Union’ / ‘Leave the European Union’.

Research participants found this the most neutral of all the versions tested. 

Interestingly when we look at its full report, the EC would have had concerns over the question (and possibly the preamble) used in 1975 (pictured above). Referring to the proposed question in the European Union (Referendum) Bill during the last Parliament which was:

“Do you think that the United Kingdom should be a member of the European Union?”

The EC concluded on page 12, that "there were issues with the [phrase] ‘Do you think…?"

Use of ‘Do you think…?’
2.20 Views from participants on the opening phrase ‘Do you think…’ in the proposed question were split. Those who liked the wording thought it was neutral and personal, as if it was inviting someone’s considered opinion and encouraging them to think about the question. Younger people were slightly more likely than older participants to express a preference for this phrasing, because it made them feel that their vote was important.

2.21 Other participants, however, did not like the use of this opening phrase because they thought it was too informal, and likened it to a question that would be asked in an opinion poll survey. Some participants thought that the phrase ‘Do you think…’ implied that no action would be taken as a result of the referendum vote.

Use of ‘Should…’ instead of ‘Do you think…’
2.28 Four of the alternative questions included in the research (versions 2, 3, 4 and 6) included the use of the word ‘Should…’ in place of ‘Do you think…’. This alternative question introduction did not affect people’s ability to understand or answer the question according to their intentions, but some research participants preferred it because they felt it was asking them to state their choice or a decision about the issue, rather than their simply their opinion. These participants felt that the use of ‘Should…’ was more decisive and binding, and that the Government would take it more seriously, with action taken as a result.

While the EC settled on the word "remain", should the proposed question contain the word "stay", as it did in 1975 this would be subject to further assessment:

...the iterative nature of the research meant that it was not possible in the time available to fully explore and user test the impact of any variations to the wording (such as using alternative answer responses such ‘continue’ or ‘stay’ instead of ‘remain’, or using shorter versions of the response options).

If the Bill is amended to include this version of the referendum question, we would therefore undertake a further assessment of the intelligibility of this wording, including research, consultation and further testing in Welsh. We would also seek evidence from potential referendum campaigners about the impact of this approach.

Even the preamble on the ballot paper used in 1975 would cause problems. The phrase "the government have announced the results of renegotiation..." is likely to influence possible positive responses for staying in, as well as being too broad and vague. What results? What was renegotiated? As the EC states the preamble must be clear and neutral. Certainly if Cameron tried to add a preamble similar to the one used in 1975 onto the ballot paper we have the opportunity to challenge and seek clarification from the EC over its neutrality.

This time therefore we can have far more confidence in the neutrality of the question. However this won't prevent Cameron trying to repeat the Wilson renegotiation sham during the campaign.

This time we do have some advantages; experience informs us this will happen so we can be better prepared, we have two years to define Cameron's sham treaty before he can. In addition, while we accept that there will significant amount of "incoming" Cameron has helpfully informed us where the shells are going to land. With limited room for manoeuvre, he has already laid out his strategy of concentrating on 'small changes' under Article 48 regarding free movement of workers. Thus we are forewarned of the nature of the fudge to come. So by broadening out the eurosceptic case away from the very narrow focus on immigration reduces greatly the danger of us being outflanked.

Interestingly though there was a crucial impact the 1975 renegotiation, what Brussels dubbed "the so-called renegotiation", tactic had which no longer will have the same effect.

It wasn't so much the content (or lack of it) that mattered swaying opinion towards staying in but the delay that the protracted discussions caused. Negotiations took up a considerable amount of time...and time was on the side of continued membership.

The longer Britain remained a member, the more it reinforced the status quo effect. The delay from March 1974 when negotiations began through to the referendum in June 1975 virtually doubled the period over which Britain had actually been a member of the EEC. Over this period, Britain was progressively adopting EEC rules and adapting customs duties and other measures in accordance with the provisions for the transitional period. By the time the referendum came, Britain was getting used to being a Community member, thus swinging the status quo effect significantly in favour of remaining in.

The delay also had another benefit. In Spring 1974, the EEC was in disarray, notably over energy questions and Britain's rising prices were attributed to Community membership. If a referendum had taken place in March 1974, Britain would very likely have decided to leave. Wilson therefore needed time so that the decision could be made in more favourable circumstances.

After 40 years of membership, the status quo effect is fully established so this major impact of a Cameron fudge in this regard will be negligible. Even more so given that unlike 1975 we have an exit plan in the form of Flexcit.

So with one crucial advantage gone, being forewarned and with time to define Cameron's treaty early we can help nullify the damage that the so-called "reform" option presents us with.

Why A 2015 EU Referendum Cannot Happen (Update).

Following on from our previous post regarding the impossibility of a 2015 referendum, we contacted the Electoral Commission to try to clarify a number of further potential technical issues.

While, like most quangos, the Electoral Commission displayed a deep reluctance to commit themselves to answering certain questions posed, their first response confirmed our initial points that, contrary to Farage's assertion, a referendum cannot happen in a few weeks (quoted from the Electoral Commission's email):

Currently, we cannot say how the designation process will work at any future referendum until Parliament passes the legislation setting out the rules for that referendum. 

Our role is to regulate the referendum and designate campaigners under the rules for each referendum. The rules that applied at previous referendums required the Commission to designate campaigners that sufficiently represented those campaigning for the outcome they support, or, if more than one, represented those campaigning to the greatest extent.

This reiterates precisely our point that it means campaigning groups can't begin to officially campaign until they submit bids for the official "in" and "out" campaign and have been approved. With Scotland a campaign period of 16 weeks was the recommendation.

However the approval process is likely to take six months as also recommended by the Electoral Commission. This six month process cannot happen until after the referendum bill becomes law which in itself at best will take months.

Thus with the Electoral Commission's recommendations which considered the experience with Scotland (for recommendations, read demands) it becomes clear that a 2015 referendum is simply out of the question.

Why A 2015 EU Referendum Cannot Happen.

As noted in the Independent last Sunday, Nigel Farage has indicated that he will support a minority Conservative Government if Prime Minster David Cameron promises a referendum in 2015:

"The terms of my deal with the Tories would be very precise and simple. I want a full and fair referendum to be held in 2015 to allow Britons to vote on being in or out of the European Union. There would be no wiggle room for 'renegotiation' somewhere down the line'.

"The EU is facing an existential crisis and, given that it only takes a few weeks to launch and organise a referendum, it should be held in 2015.”

Although we would largely agree with the sentiments of a "full and fair" referendum, we would take issue with the "very precise and simple" demand that a referendum should be held in 2015 and "given that it only takes a few weeks to launch." For the very precise and simple reason that it can't be done. Farage is offering impossible terms on the practicality of timescale.

To support Farage's demands comparisons are sometimes made with the 1975 referendum where it is claimed that it is possible to have a referendum in a few weeks, the timeline often quoted is as follows:

December 1974: Harold Wilson requests renegotiation of EEC membership terms.

European Council agreed to new terms for UK in Dublin by 11 March 1975 and renegotiation largely ended.

26 February 1975: White Paper announcing referendum to be held after result of renegotiation was known

26 March 1975: Referendum Bill published.

31 March 1975: White Paper setting out the results of the renegotiation of the UK membership of the EC.

9 April 1975: after a three-day debate on the Government’s recommendation to continue Britain’s EC membership, the Commons voted 396 to 170 to continue in Common Market on the new terms. At the same time Government drafts Referendum Bill, to be moved in case of a successful renegotiation.

On 22 April 1975 the House of Lords approved continued membership by 261 votes to 20.

Post-legislative referendum held 5 June 1975. Referendum not directly related to White Paper on renegotiation, but preamble referred to renegotiation. Question much broader: “Do you think the UK should stay in the European Community (Common Market)?” The result was 67 per cent in favour on a 65 per cent turnout.

As we can see in 1975 the passage through Parliament to holding a referendum took circa 10 weeks (26 March - 5 June) from publishing the Bill to holding the Referendum. The 1975 Referendum book though notes (p.66):

"But the real reason for the unexpectedly easy passage of the Bill was political: pro-Marketeers were in an overwhelming majority in the House of Commons and they had belatedly realised that the referendum would go their way."

Even with an easy passage it still took two and half months to have a referendum. The election in 2015 is in May, then there's a summer recess so we can expect it to take longer. Especially when we consider that due to the complexity of an EU that has significantly evolved in over 40 years of UK membership and the less certainty of a referendum result, that its passage through Parliament will be more turbulent and difficult.
 
We have noted before regarding trying to win a referendum, 1975 is not 2015. The country has moved on in forty years. Procedures are now different, for example in 1975 the campaign started in January 1975 long before the Referendum Bill had been passed - with self-appointed "umbrella" groups.

However unlike 1975 referendums are now the responsibility of the Electoral Commission, which was established under Political Parties, Elections and Referendums Act 2000. Thus on that alone the timescale in comparison to 1975 has changed.

With the establishment of the Electoral Commission it means that campaigning groups can't begin to officially campaign until they submit bids for the official "in" and "out" campaign and have been approved. This process cannot happen until after the referendum bill becomes law.

There has to be a reasonable period to allow the Electoral Commission to invite submissions and make the designation, and then the lead organisations must be given time to organise themselves.

As we can see from the Electoral Commission December 2014 report on the Scottish Independence Referendum held on 18 September 2014, it recommends (my emphasis):

... that in planning for any future referendums, not only in Scotland but also those held across or in other parts of the UK, governments should aim to ensure that legislation (including any secondary legislation) is clear at least six months before it is required to be implemented or complied with by campaigners, the Chief Counting Officer, Counting Officers or Electoral Registration Officers.

Thus "a reasonable period" according the Electoral Commission amounts to six months, as it argues to allow for (again my emphasis):

The benefit of this additional time was passed on to campaigners, EROs and COs in preparing for their respective roles at the referendum:

Campaigners were able to engage constructively with the legislative process and had time to develop an understanding of the relevant guidance and rules, before they came into force. EROs and COs benefitted from sufficient time to put robust plans in place for the delivery of their responsibilities under the legislation, from targeted public awareness activity to the booking of polling places and the training of staff.

In addition the Electoral Commission also recommends (again my emphasis):

2.39 Following the 2011 referendum on additional powers for the National Assembly for Wales and the Parliamentary Voting System for the House of Commons, we recommended that for future referendums the detailed rules should be clear at least 28 weeks in advance of polling day, based on a statutory regulated referendum campaign period of 16 weeks.

Although the Electoral Commission cannot demand, where it recommends will be taken into account should there be a challenge to the Bill and it goes to a Judicial Review as undoubtedly it would should there be any form of corner cutting or fast-tracking.

Yet even with a relatively smooth process by the Electoral Commission's recommendations there would be a ten month delay between an Act of Parliament and a vote: that obviously takes us well into 2016.

In addition Farage thinks he can determine the referendum question:

 "Do you wish to be a free, independent sovereign democracy?"

Despite the fact that the Electoral Commission has already put forward its proposals for the referendum question - its full report is here, Farage's suggestion wouldn't even pass the unambiguity test let alone the neutral one.

At this point I don't know what to conclude. Either Farage is very poorly briefed which is a reflection on a lack of a decent research department despite having (now) 22 very well paid MEPs or he knows this and is deliberately demanding conditions that Cameron (or indeed anyone else) cannot possibly meet.

The latter of course allows UKIP to put forward the criticism that Cameron cannot be trusted which conveniently helps prop up Farage's position. If one is to be cynical there's nothing better than having a perpetual enemy to oppose to justify your own existence, especially in the absence of any party polices.

Either way the eurosceptic movement is being very poorly served by UKIP.