The Treasury Select Committee has said that the EU referendum debate ‘is being poorly served by inconsistent, unqualified and, in some cases, misleading claims and counter-claims’. Alan Renwick, Deputy Director of the UCL Constitution Unit, asks whether there is anything that can be done about this. He identifies a number of possible mechanisms for identifying falsehoods and enforcing truthfulness, but warns that there is a danger that injunctions against certain claims could be presented as evidence of an ‘establishment plot’. A deeper shift in political culture may be required.
Alan Renwick has co-ordinated an open letter to the Daily Telegraph from a group of over 200 senior academics to criticise the deliberate misinformation circulated by both sides of the Brexit debate.
How can we encourage accuracy in the claims made by referendum campaigners? This has become a vital concern. In its report published last month, the House of Commons Treasury Select Committee said, ‘The public debate is being poorly served by inconsistent, unqualified and, in some cases, misleading claims and counter-claims. Members of both the ‘leave’ and ‘remain’ camps are making such claims.’ Speaking at the weekend, Sir John Major said, ‘I am angry about the way the British people are being misled’, and argued that Vote Leave were running ‘a deceitful campaign’.
Such concerns are not unique to the current EU debate. My analysis of the last UK-wide referendum – the vote five years ago on whether to introduce the alternative vote (AV) electoral system – found that 26 per cent of the claims made in newspaper reporting of the campaign were not merely misleading, but actually false. This mattered to how voters viewed the choice before them: the political scientist Jack Vowles surveyed voters at the start and end of the campaign asking whether they thought various statements about AV were true or not. He found that, over the campaign, voters came on the whole to believe the false statements more and the true statements less.
So what, if anything, can be done to promote truthfulness in referendum campaigning? In elections, we have the ultimate backstop that some types of lying are prohibited by section 106 of the 1983 Representation of the People Act. The recent case involving Orkney and Shetland MP Alistair Carmichael shows the limits of that provision. Nevertheless, the experience of former Labour MP Phil Woolas illustrates that there are some claims that candidates need to be very careful of making. There is no such constraint in the case of referendum campaigns.
Mechanisms for identifying falsehoods
The first thing to consider is whether any mechanism can be established for definitively assessing the truthfulness or otherwise of the claims that are made. Of course, in any referendum campaign, there will be many issues that are matters of legitimate disagreement. But there are also numerous issues of fact, where definitive judgements are in principle possible.
Some countries holding referendums do have such mechanisms. In a referendum on the electoral system in 2011, New Zealand’s Electoral Commission rebuked one of the campaigns for making a claim that the Commission described as ‘factually incorrect’. In Ireland, an ad hoc Referendum Commission is established each time a referendum is held, partly to encourage informed discussion. Before last year’s vote on same-sex marriage, the Commission’s Chair rebutted attempts by those opposed to the change to link the referendum to rules on surrogacy and adoption.
In the UK, by contrast, no such body exists. Indeed, the UK Electoral Commission has repeatedly argued that it should not be given such a role. In its report on the 2011 AV referendum, for example, it said (at paragraph 5.108) that to do so ‘would be very likely to draw the Commission into political debate, significantly affecting the perception of our independent role, and posing substantial operational and reputational risks’.
Nevertheless, at least four potential sources of authoritative judgements have presented themselves in the course of the referendum campaign.
The first is, as already noted, the Commons Treasury Committee. Its report last month condemning both campaigns for promoting falsehoods and exaggerations received much media attention and continues to be cited by those seeking to highlight inaccuracies. Still, the committee could not be called an impartial arbiter: of its eleven members, only two (according to this list) have not declared their position on the referendum question; securing unanimity for the report presumably required some political balancing.
We tend to hope in democracies that independent truth-seeking is the role not of politicians, but of the media. Most newspapers in the UK are famously partisan. But the broadcasters are required to maintain impartiality, and several are now running extensive fact-checking operations. The BBC has a dedicated EU referendum ‘Reality Check’ strand and Channel 4’s FactCheck blog is doing similar work. The independent Full Fact website has gone into overdrive. These fact checkers are a potential second source of authoritative guidance – though none has official standing.
That contrasts with the third potential source, which is the UK Statistics Authority (UKSA). The UKSA has ‘the statutory objective of promoting and safeguarding the production and publication of official statistics that “serve the public good”’. It has intervened several times to comment on how official statistics have been used in the course of the campaign. On 21 April, it set out the various components of the UK’s contributions to the EU budget and labelled Vote Leave’s claim that the UK sends £350 million a week to the EU as ‘potentially misleading’ (see also here and here). On 27 May, in response to a request from the Daily Mail, it found no reason to criticise the use of statistics in the Treasury’s assessment of the long-term impact of Brexit. These interventions resembled those made by official bodies in New Zealand and Ireland. But they have been few in number and they are limited solely to the use of official statistics.
The final potential source of authoritative judgements of truthfulness is the Independent Press Standards Organisation (IPSO), whose role is to ‘uphold the highest standards of journalism by monitoring and maintaining the standards set out in the Editors’ Code of Practice’. The first item in the Code says, ‘The Press must take care not to publish inaccurate, misleading or distorted information or images, including headlines not supported by the text.’ So far this year, IPSO has upheld six complaints relating to inaccuracy. The most widely publicised was the ruling on 20 April that The Sun had not justified its headline on 9 March that the ‘Queen backs Brexit’. Three of the remaining five judgements also concerned matters linked to the referendum debate (all involving aspects of immigration and deportation). There is potential for IPSO to become much more deeply involved: on 19 May, the pro-Remain website In Facts announced that it was complaining to IPSO over articles in three newspapers that it described as misleading. It is unlikely, however, that IPSO will take up this challenge. Its rulings typically take two to three months (its response on The Sun’s Queen story was unusually fast) and will therefore come through long after the referendum is over.
The problem with all these mechanisms is that they are manifestly not working – or, at least, not working enough. The clearest case of ongoing falsehood is Vote Leave’s claim, noted above, that the UK sends £350 million pounds a week (or £50 million a day) to the EU. This claim has been called ‘potentially misleading’ by the UKSA and ‘highly misleading’ by the Commons Treasury Committee. The BBC’s Reality Check site says, ‘The UK does not send £50 million a day to the EU.’ Full Fact says, ‘We send £250 million not £350 million.’ Channel 4’s FactCheck blog points out that the net contribution is substantially lower even than that. Yet Vote Leave continue to use the £350 million number. The official Remain campaign has not engaged in such repeated unambiguous lying. But it too regularly exaggerates its points or paints as certain forecasts that may or may not prove accurate.
Mechanisms for enforcing truthfulness
The question therefore arises of whether mechanisms can be found not merely to expose falsehoods, but also to ensure that campaigners do not just keep on repeating them.
The most direct solution might be to say that, just as some lying in election campaigns is against the law, so too should lying in referendum campaigns be against the law. Campaigners who violate such provisions could then be subject to criminal sanctions. But this would give many people grave concerns about violation of free speech. Further, even if we might like in principle to outlaw lying that seeks to sway the vote, the power this would give those who adjudicate truthfulness may be too great – and too open to abuse. In elections, it should be remembered, only lying about a candidate’s ‘personal character’ is banned: lying about policies or their effects is (in law) allowed.
At least four other ideas deserve further examination. One is a point long discussed in the wider debates over press regulation: that rulings on complaints about press coverage should be delivered more quickly and that, where those complaints are upheld, retractions or corrections should have a prominence commensurate to that of the original article.
Second, the official campaign organisations might be obliged to comply with independent judgements in matters of truthfulness. These organisations receive substantial public funds: not just grants, but also free mailings, broadcasts, and other benefits. They could be obliged to sign up to an enforceable code of conduct in return for this support. The Treasury Committee’s report (at paragraph 235) hints that the committee may wish to explore such a possibility once the referendum dust has settled. This approach is attractive in many ways, but also poses challenges. Who would be the arbiter of truthfulness? Would they be able to act quickly enough to work effectively? How would penalties be decided and enforced? Whether such questions have satisfactory answers requires further investigation.
Third, the broadcasters might give greater prominence to their own fact-checkers. The degree to which the BBC, in particular, should call out falsehoods has been the subject of some discussion (for example, here and here), and a detailed post mortem will be needed once the referendum is over. The BBC has considered carefully – notably, following a 2011 report by the UCL scientist Professor Steve Jones – how to cover issues such as climate change, where the overwhelming weight of scientific analysis points in one direction. There are clearly particular sensitivities when, in the context of a referendum campaign (where BBC guidelines emphasise the need for balance between the sides), expert analysis, on certain specifics, overwhelmingly favours the claims made by one side.
Fourth, more information about the options in the referendum might be provided through official but independent channels. The Electoral Commission has a statutory duty (under the EU Referendum Act 2015) to ‘take whatever steps they think appropriate to promote public awareness about the referendum and how to vote in it’. But it has no duty to enhance public understanding of the issues at stake in the referendum. That contrasts, for example, with the New Zealand Electoral Commission. The extensive materials it produced for that country’s 2011 referendum on the voting system remain available. These include detailed explanations of each option, statements of the criteria against which the options might be evaluated, and analyses of how the options perform against these criteria. In what was (it should be acknowledged) a much less intense or politicised campaign than the current one, journalists frequently relied heavily on the Commission’s guide as a basis for their reporting.
But can anything work in the current political climate?
Measures such as those suggested above might work, and there may be other options to consider beyond just these. Further careful analysis of such ideas is badly needed: at present, our knowledge of them – including what has and has not worked elsewhere – is sorely limited.
But there is also reason to doubt the extent to which interventions in the context of referendum campaigns alone could make much difference. Politics in the UK, the US, and many other democracies has lately taken on a deeply anti-establishment tone. In this context, there is a danger that any policing of truthfulness in future referendums could simply be used to fuel a populist fire: that injunctions against certain claims could be turned around and presented as further evidence of an establishment plot.
If that is the case, referendums can become instruments of clear-sighted decision-making only through a deeper shift in political culture. The best response to the rise of unthinking populism is not to return to the elitist politics of old: that would be impossible even if it were desirable. Rather, it is to foster a more deliberative form of broad public participation, in which a public appetite for grounded arguments is nurtured, squeezing out the incentives for misinformation. For this reason, I have recently been investigating (in depth, here and here; more briefly, ) ways of building elements of popular deliberation into British political practice. Matthew Flinders makes a similar point and offers mechanisms to encourage it in the current referendum. In truth, however, trying to do this once the referendum campaign has begun may be too late: it requires much more fundamental change in how we think about and structure our democracy.
That is a challenge that we should all seek to address once the referendum is over. Failure to do so may do more than render future referendums unhealthy. If the degree of mendacity witnessed in this campaign were to become commonplace in our electoral politics as well, one of the crucial foundations of our democratic system would be badly damaged.
Dr Alan Renwick is the Deputy Director of the Constitution Unit.
Note: The views expressed in this post are those of the author, and not of the UCL European Institute, nor of UCL.
This article first appeared on the blog of the UCL Constitution Unit.