Report of the Independent Commission on Referendums INDEPENDENT COMMISSION ON July 2018 REFERENDUMS ISBN: 978-1-903903- 83-4 Published by the Constitution Unit School of Public Policy University College London 29-31 Tavistock Square London WC1H 9QU Tel: 020 7679 4977 Email: [email protected] Web: www.ucl.ac.uk/constitution-unit ©The Constitution Unit, UCL July 2018 This report is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, hired out or otherwise circulated without the publisher’s prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser. First Published July 2018 1 Report of the Independent Commission on Referendums INDEPENDENT COMMISSION ON REFERENDUMS 2 Report of the Independent Commission on Referendums 3 Contents Lists of Tables, Figures and Boxes 4 Foreword 5 Commission members 6 Commission Secretariat 8 Executive Summary 9 Introduction 13 Part 1: Background Chapter 1 – The Use of Referendums Worldwide 19 Chapter 2 – The Use of Referendums in the UK 31 Chapter 3 – Regulating Referendums: History and Debates 47 Part 2: The Role of Referendums in Democracy Chapter 4 – Referendums and Democracy 57 Chapter 5 – Calling Referendums 71 Chapter 6 – Legislating for a Referendum 81 Chapter 7 – Preparation for a Referendum 90 Chapter 8 – The Referendum Question 101 Chapter 9 – Thresholds and Other Safeguards 110 Part 3: The Regulation of Referendum Campaigns Chapter 10 – The Role of Government in Referendum Campaigns 123 Chapter 11 – Lead Campaigners 134 Chapter 12 – Campaign Finance 145 Chapter 13 – Quality of Discourse 159 Chapter 14 – Regulation of Online Campaigning 178 Part 4: Implementation Chapter 15 – Implementing the Commission’s Recommendations 192 Conclusions and Recommendations 201 Appendix: List of Responses to Expert Consultation 210 Reference list 211 4 Report of the Independent Commission on Referendums List of Tables, Figures and Boxes LIST OF FIGURES LIST OF BOXES 1.1. 19 2.1. 34 Frequency of national referendums in sovereign states, UK referendums that never happened by decade 2.2. 39 1.2. 20 Topics on which referendums in the UK are now legally State-wide referendums in stable democracies since required 1990, by country 5.1. 74 1.3. 22 The Danish rejective referendum Support for referendums around the world, 2014 7.1. 91 1.4. 23 The Scottish Constitutional Convention Change in support for referendums around the world, 7.2. 93 2004–14 Ireland’s Constitutional Convention and Citizens’ 1.5. 24 Assembly State-wide referendums in democratic countries since 7.3. 94 1990, excluding Switzerland, by topic Canada’s citizens’ assemblies on electoral reform 1.6. 28 7.4. 98 The process of decision-making in five recent Principles of citizens’ assembly design referendums around the world 7.5. 99 2.1. 43 The Citizens’ Assembly on Social Care Support for the use of referendums in the UK 9.1. 111 5.1. 78 Electorate thresholds in the 1979 devolution Success of citizen-initiated referendums in democratic referendums countries since 1990, excluding Switzerland 9.2. 112 10.1. 124 Turnout thresholds in Italy Government leaflet from 1975 referendum 10.1. 125 13.1. 171 Political Parties, Elections and Referendums Act 2000, Referendum Communication from Vote Leave section 125 13.2. 171 Referendum Communication from Stronger In 10.2. 127 The UK government leaflet on the EU referendum LIST OF TABLES 11.1. 135 2.1. 32 Designation of lead campaigners at the 2016 EU National and regional referendums in the UK, 1973–2016 referendum 2.2. 44 11.2. 137 UK public attitudes to the use of referendums after the Designation of lead campaigners at the 2011 Welsh EU referendum devolution referendum 3.1. 51 11.3. 143 Principal deviations from PPERA in recent referendums Ofcom’s fit and proper person test 8.1. 105 12.1. 150 Options in the 1992/3 New Zealand electoral reform Allocation of public funding by the Dutch Referendum referendums Commission 8.2. 106 13.1. 163 Options in the 2015/16 New Zealand flag referendums Regulating truth in South Australia 9.1. 114 13.2. 165 Simulation applying threshold requirements to past UK Information provision in Ireland and New Zealand referendums 13.3. 167 11.1. 136 Citizen Initiative Reviews in Oregon Lead campaigners in referendums since 2000 14.1. 185 12.1. 147 Current restrictions on political advertising in the Grants available to lead campaigners at post-PPERA broadcast media referendums 15.1. 194 12.2. 148 Checklist for those considering calling for a referendum Spending limits for registered referendum campaigners at the 2016 EU referendum 13.1. 161 Public opinion on the conduct of the EU referendum campaign 5 Foreword The current legal framework for conducting referendums in the UK was laid down in 2000. It was based on the recommendations of two reports: of the Nairne Commission on the Conduct of Referendums, which was co- sponsored by the Constitution Unit, in 1996; and of the Committee on Standards in Public Life, in 1998. Twenty years and several referendums later, it is time for a fresh look. The world has moved on, not least through the rise of online campaigning. And we have much more experience of referendums – both in the UK and around the world – to learn from. The quality of the members who accepted an invitation to join a new Commission confirms the need to take stock. The five referendums that have been held under the current legislative framework, including the 2014 referendum on Scottish independence and the 2016 referendum on whether to leave the European Union, provide plenty of scope for reflection on the pros and cons of referendums and how to run them. Throughout our work we have been aware that recent experience has generated strong views about referendums themselves as well as about their subject-matter. Many people have sent us evidence or have attended one of the seminars we have held in Belfast, Cardiff, Edinburgh and London. That has been a great benefit and we are very grateful to them. But we have been equally aware of the danger of our work being unduly influenced by very recent debate which is still ongoing. We have done our best to learn from recent experience but to focus on the future and a wide range of possibly quite different circumstances. It falls to others to judge whether we have succeeded. The members of the Commission were not invited to take part because they were sure to be of one mind. As well as their expertise and relevant experience, it was expected that they would hold a variety of views. In the event, they have been a very easy group to chair because each member has been ready to express a personal view but has recognised the need to collaborate with others. We all owe a great debt to the team from the Constitution Unit: Meg Russell, Alan Renwick, Jess Sargeant and Edd Rowe. We would have made no progress without their knowledge of referendums in the UK and across the world and their skill and speed in preparing and revising draft papers on every aspect of our terms of reference. They played a full part in all our discussions but, whilst acknowledging how much we owe them, the members of the Commission accept full responsibility for the conclusions and recommendations in the report. Joe Pilling Chair of the Independent Commission on Referendums 6 Report of the Independent Commission on Referendums Commission Members Commission Chair: Sir Joseph Pilling KCB The Rt Rev. the Lord Eames OM Joe Pilling has previously served as both Director Robin Eames was Anglican Archbishop of Armagh and General of the Prison Service and Permanent Secretary Primate of all Ireland from 1986 to 2006. He is an active of the Northern Ireland Office. Since leaving the civil Crossbench peer and a member of the Privileges and service in 2005 he has been involved in several reviews Conduct Committee of the House of Lords. Along with covering, for example, the Civil Aviation Authority, the other church leaders, he had a key role in the peace 30 Years Rule and the Independent Press Standards process in Northern Ireland, where there was a Organisation. He is a current or former trustee of referendum on the Good Friday Agreement in 1998. several charities. Rt Hon Dame Cheryl Gillan MP Rt Hon Dominic Grieve QC MP Cheryl Gillan has been Conservative Member of Dominic Grieve has been Conservative Member of Parliament for Chesham and Amersham since 1992. Parliament for Beaconsfield since 1997. He was Attorney Born in Cardiff, she was Secretary of State for Wales General for England and Advocate General for Northern (2010–12), overseeing the Welsh devolution referendum Ireland from 2010 to 2014. He had a career in law before of 2011. She is a member of the House of Commons entering politics and was appointed a Queen’s Counsel in Public Administration and Constitutional Affairs 2008. He has been chair of parliament’s Intelligence and Committee, and represents the UK on the Parliamentary Security Committee since 2015, and also chairs the Assembly of the Council of Europe, where she is All-Party Parliamentary Group on the Rule of Law. Rapporteur for an inquiry into referendum rules. Sue Inglish Seema Malhotra MP Sue Inglish was Head of Political Programmes, Seema Malhotra has been Labour Member of Analysis, and Research at the BBC between 2005 and Parliament for Feltham and Heston since December 2015. Before joining the BBC, she worked for ITN 2011. She is a former management consultant who between 1983 and 2001, where amongst other roles worked for Accenture and PriceWaterhouseCoopers.