Written evidence from The Sixty-Three Group (EUR 52)

 

Public Administration and Constitutional Affairs Committee

Lessons Learned from the EU Referendum inquiry

 

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This written evidence is submitted by “The Sixty-Three Group”, a group of UK citizens concerned with the upholding of democratic values in public life and of integrity in the Civil Service. It has no affiliations with any political party. (226 Members. Coordinator: Richard Bird)

 

 

Executive Summary

 

 

Submission

 

1. The role and purpose of referendums

                                                           

                                              1.1 What is the legal status of referendums and what questions are appropriate to be determined by referendums?

                                 

        1.1.1  It is understood from informal legal opinion that all referenda are advisory by default, unless deemed otherwise by Parliament beforehand.

 

        1.1.2  No questions of national importance should be determined by referenda. That is the job of Parliament.  Referenda should be limited to local or regional issues, not national issues. The difficulties with national coverage have been well illustrated in the EU Referendum by the wide divergence of views and wishes in Scotland, Northern Ireland, Liverpool, Manchester and London as opposed to most of the rest of the UK, and resultant conflict of regional interests which has arisen.

 

2. The regulatory system for referendums

 

        2.1    How effective, and comprehensible, is the existing system of regulation for referendums in the United Kingdom?

         

        2.1.1  It appears to be inadequate.  Grossly untruthful statements were made.  Promises were made which were without foundation.

        There was no independent body set up to give out impartial and factual information or control abuse. Such a body, with appropriate powers, should be mandatory for future referenda.

 

                                              2.2               Should referendums on constitutional questions include a minimum percentage threshold?

 

2.2.2  If the referendum is intended and stated to be a binding Vote, of course.  Any well managed organization, from BP plc to a local Bridge Club, has a minimum threshold for major decisions, typically 60 or 66%.  There should also be a requirement for a minimum turnout threshold, determined by Parliament as appropriate in each case.

 

It should also be noted that the ballot paper option “Leave the EU” was woefully vague and simplistic.  That option could imply a dozen different and complex scenarios.  “Leave the EU” is virtually meaningless.  That option should been broken down into three of four specific and realistic choices.  The result might well have been Remain voted on as the largest single option.  28% of the electorate failed to vote. The Leave vote amounted to only 37.5% of the electorate.  In this sense the ballot itself was seriously flawed and a failure of direct representation.

         

3. The campaign

                           

3.1 What role did the machinery of Government play during the referendum campaign and what were the consequences for Civil Service impartiality?

 

3.1.1 The Government role was seriously inadequate to the point of negligence. It failed to properly explain to the public that the referendum was not a binding Vote, but an Advisory Consultation for due consideration by Parliament. This was made very clear in the Bill, in the Act, (Appendix 1) and in the House of Commons Briefing Paper, June 2015, no CBP-7212,  Section 5 (Appendix 2).   All MP's and most certainly the Cabinet and the senior Civil Service should have been aware of its content.

 

3.1.2  It is remarkable that nobody, neither in Government, in the Commons or Lords, nor the media, raised this fundamental point publicly before the vote, allowing it to be viewed as a binding vote for action on a bare majority.  It is equally astonishing that the PM David Cameron actively encouraged such a view in numerous public statements.   Further, although creating the illusion that the vote was binding, the PM curiously failed to define any passing threshold beforehand.  The only explanation seems to be that the PM expected a Leave vote of less than 50%, at which point he could move in an imaginary 50% goalpost and claim victory - perhaps hoping that nobody would notice the sleight of hand.  It is hard to think of any other explanation. The resultant need to support this illusion, or wall of silence, must surely have created severe internal strain on the integrity and dedication of senior staff in the Civil Service, and must continue to do so. 

 

3.1.3   The PM David Cameron may be considered by some to have been ultra vires in making statements which were not in conformity with the Act by declaring and accepting that the vote was binding, based on a bare majority.

 

3.1.4  The PM Theresa May may be considered by some to be ultra vires in making statements which are not in conformity with the Act, implying that she considers the bare majority vote to be binding, and requires the Government to serve notice according to Article 50 of the Lisbon Treaty. There is no such legal requirement, no authority for such action by the Government or PM.

 

3.1.5 The PM Theresa May may be considered by some to be ultra vires in extremis in seeking to serve such notice unilaterally, through Royal Prerogative, without first seeking a debate and vote in Parliament to determine what action, if any, should result.

 

3.1.6  The resultant need to support the “misrepresentations” above has surely created severe internal strain on the personal integrity of senior staff in the Civil Service. It would appear that a solid façade of impartiality has been preserved, but at the expense of honesty and personal integrity.

 

The tasks imposed upon the Civil Service by the maintenance of this façade, must surely place a huge strain on the Civil Service workload and resources, diverting resources away from other essential national tasks, thereby creating internal and external pressures and stress which, while not demonstrably affecting impartiality, must surely adversely affect morale or commitment.

         

4. Planning

         

        4.1 How adequate was the Government’s post-referendum planning?

         

        4.1.1 It would appear to have been woefully inadequate. There appears to have been no contingency plan at all for action following a Leave majority.

         

        4.2 What level of contingency planning should be provided by the Civil Service as to possible referendum outcomes? For example, should it adopt a model similar to that found in General Elections (whereby the Civil Service holds meetings with the Opposition before the result is known to prepare to implement its programme if necessary)?

 

        4.2.1  Each referendum is unique and there is no universal rule. By its nature, a referendum will not necessarily have a clear opposition or support group. It should be the responsibility of the Government to set up a Referendum Committee to formulate the appropriate requirements for contingency plans for each Referendum, should more take place.

 

 

August 2016


 

 

Appendix 1 

The ACT

 

 

1

The referendum

(1)

A referendum is to be held on whether the United Kingdom should remain a member of the European Union.

(2)

The Secretary of State must, by regulations, appoint the day on which the referendum is to be held.

(3)

The day appointed under subsection (2)—

(a)

must be no later than 31 December 2017,

(b)

must not be 5 May 2016, and

(c)

must not be 4 May 2017.

(4)

The question that is to appear on the ballot papers is—

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

(5)

The alternative answers to that question that are to appear on the ballot papers are—

“Remain a member of the European Union

Leave the European Union”.

 

The Act does NOT contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions.

 

In contrast, the legislation which provided for the referendum held on AV in May 2011 would have implemented the new system of voting without further legislation.


Appendix 2

House of Commons Briefing Paper of June 2015  no. CBP-7212, Section 5

Full Paper at:

http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7212

 

5. Types of referendum

 

This Bill requires a referendum to be held on the question of the UK’s continued membership of the European Union (EU) before the end of 2017. It does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions. The referendums held in Scotland, Wales and Northern Ireland in 1997 and 1998 are examples of this type, where opinion was tested before legislation was introduced. The UK does not have constitutional provisions which would require the results of a referendum to be implemented, unlike, for example, the Republic of Ireland, where the circumstances in which a binding referendum should be held are set out in its constitution.

In contrast, the legislation which provided for the referendum held on AV in May 2011 would have implemented the new system of voting without further legislation, provided that the boundary changes also provided for in the Parliamentary Voting System and Constituency Act 2011 were also implemented. In the event, there was a substantial majority against any change. “

 

64 For details see Commons Library briefing Regulation of Referendums 29 January 2013.