Written evidence from Dr Kate Hammer (EUR 82)
Public Administration and Constitutional Affairs Committee
Lessons Learned from the EU Referendum inquiry
Summary
Background
I am internationally known for my work in business change and communications. I hold a top degree in Semiotics (the study of meaning) from an Ivy League university, and am regarded as a top blogger in my field.
I am submitting evidence because I believe I have identified legitimate and deep flaws in the Referendum. I have openly published what I have been learning since late June 2016, and repeatedly I have been asked or told to take my findings to Westminster.
1.1. Even posing the question undermines settled international peace. Any question that would materially change the nation’s ability to continue to fulfill the obligations set forth in an international peace treaty (the Belfast Agreement) is not appropriate for a referendum. The EU Referendum Question falls into this category.
1.1.1. The Belfast Agreement is registered with the United Nations. That registry is the legacy of the League of Nations created to provide transparency in international affairs in the interest of peace.
1.1.2. The 499-kilometre soft border that exists between Northern Ireland and Eire exists in the context of the EU Customs Union. If the UK leaves the EU Customs Union, the border will require goods to be examined. Such a border would utterly undermine the harmony achieved by the people of North and South, who can work, shop and socialise easily. In changing the border, the United Kingdom dramatically changes the peaceful co-existence achieved after decades and decades of violence.
1.1.3. In failing to anticipate the jeopardy into which the settled peace might be thrown, Parliament has failed to act in the entire nation’s interest.
1.2. The question asked contained within it implications of a grave and lasting nature, that neither the Act’s architects, nor the campaigns addressed. The Referendum had the effect of asking voters to determine:
1.2.1. Do you consent to your nation repudiating its treaties with other nations, and accept any ramifications that may have on the stability or security of the UK?
1.2.2. Do you consent to removing the firm basis of the Belfast Agreement of 1998 which settled peace in Northern Ireland within the common framework of the EU?
1.2.3. Do you consent to jeopardising the the Northern Irish peace settlement, bearing in mind that the Belfast Agreement ratified by the governments of the United Kingdom and the Republic of Ireland has been registered with the United Nations, a practice whose conception dates back to the League of Nations?
1.2.4. Do you consent to the weakening or dissolution of the United Kingdom, into constituent nations choosing their own path within or beyond the EU?
1.3. Furthermore, the prospect of a Northern Ireland in the United Kingdom that is no longer a member of the EU has an effect Parliament and the Regulator failed to anticipate: creating two tiers of UK citizenship for those born in the United Kingdom. Under the Belfast Agreement, those born in Northern Ireland are entitled to a Republic of Ireland passport; after a British exit from the EU, Northern Irish-born UK citizens will be able to elect a passport granting EU citizenship, whereas peers born in Wales, England and (if it remains) Scotland will not enjoy this privilege. Ergo, the electorate was being asked to decide, also:
1.3.1. Do you endorse the de facto creation of a two-tier citizenship system for UK citizens born (not naturalised) in the United Kingdom?
1.4. It may be the case that Parliament is sovereign, but after the wars of the 20th Century, it is difficult to imagine any Parliament openly advocating for peace treaty repudiation, the dissolution of the United Kingdom or the creation of a two-tiered system of citizenship. Yet all these possibilities are opened up by the implications of the Referendum question.
1.5. That the question could even be asked without first re-negotiating the Belfast Agreement beggars belief.
2.1. Regulation of the EU Referendum was inadequate.
2.2. The Act failed to provide thresholds for turnout and for supramajority. It doing so, it breached best practice (as evidenced in direct democracies like Switzerland and Australia). It also failed to conform to the ballots used in trade unions. The Regulator should have insisted on thresholds as a matter of course.
2.3. The Act was inconsistent with the Scottish Referendum. The Scottish Referendum enfranchised 16 & 17 year olds, those whose lives would be most affected by such a profound change. Parliament failed to provide for voting for 16 & 17 year olds in the EU Referendum on cost grounds. The regulator should have challenged this lack of parity with the previous well-publicised referendum in Scotland; and also challenged it in the name of justice and fairness. The Regulator failed to do both.
2.4. The Act failed to provide for sufficient time for the issues to be considered by the electorate, and the Regulator failed to challenge this. Both Parliament and the Electoral Commission wrongly supposed that the consideration owed to a ballot choice in a General Election (where the political parties are well-established) would be sufficient for the matter of EU membership. However, the Referendum Question asks voters to a matter that pertains to 40 years of legal integration and penetrates every aspect of civil society. The time allowed was not sufficient. Also, the interval did not match the Scottish Referendum timeline.
2.5. The Electoral Commission had evidence from its Public Opinion research regarding the 2013 Private Members’ Bill that members of the public did not all understand the question about Britain’s membership. However, in its role of advisor, it seems the Commission used this information to sharpen the question rather than to challenge Parliament about the suitability of a referendum on the complex issue. Clearly the two roles are incompatible and must in future be separated.
2.6. The Regulator failed to ensure that those most heavily affected by a “Leave” outcome would be universally enfranchised: namely, those UK nationals residing on a long-term basis in the EU. They do so entirely legitimately; and one imagines that with rare exceptions they are fully embedded in the European country where they have made their life. This includes maintaining homes where they reside, having obligations to work, family or community; and also living out a retirement on a fixed income that would not be adequate in Pounds Sterling. To fail to ensure the full participation of these UK nationals is an abrogation of duty.
2.7. The Regulator was toothless when promises started being made by Her Majesty’s Government about the referendum results. The Act clearly stated the referendum was advisory and, as such, non-binding. The Regulator should have intervened to prevent HMG from stating otherwise, whereas the government leaflet stated: “This is your decision. The government will implement what you decide.” Failure to prevent or annul this undertaking to implement created confusion in the electorate, which continues to play out.
3.1. The European Union Referendum Act 2015 (2015 c. 36) did not use the wording from the 1975 referendum, which began “Do you think…”.
3.1.1. This was presumably because of the research undertaken by the Electoral Commission after the Private Members’ Bill was introduced in 2013 by James Wharton MP. The grounds for eliminating this crucial phrase are very weak, namely “making the question more to the point” (Electoral Commission 2015, 2.4).
3.1.2. However, its impact is appreciable. By allowing this introductory phrase “Do you think” to be eliminated the Electoral Commission was creating the sense of decisiveness on the ballot paper ill-suited to an advisory referendum.
3.2. Had the phrase “Do you think” been retained, it would have been much simpler to affirm to the electorate that the referendum was advisory, not binding. Treating the results as advisory is the only interpretation of the results that conforms with the Act of Parliament that established the referendum.
3.3. Also, the Electoral Commission directed Parliament to lose the “Yes/No” answer structure and substitute the verbs. Of course such replies test better in opinion research; they are more vivid. However, in the moment of voting, the verbs impart the sense of an action “Leave” or “Stay” to the casting of a vote. This is a grave mistake if one’s intention in asking the Referendum question is to have the benefit of the electorate’s preferences.
3.4. While the ugliness of the racist attacks and harassment, and the open expression of xenophobia has far deeper roots; the wording used in the Referendum normalised the expression of hostile sentiments. It “opened a can of worms” that has yet to be put right.
4.1. The work undertaken by the Electoral Commission in its advisory role was not to a high standard.
4.2. Attention was given by the Electoral Commission to the choice of verbs pertaining to the status quo. “Remain” and “Stay” were shown to have different semantic associations.
4.3. However, the report fails to identify other acceptable verbs to describe the status quo (such as “maintain membership”).
4.4. Also the Commission failed to expose fully the differences between the two verbs. “Remain” is closely linked to nouns such as “remainder” (that which is left when a long division problem resolves to a decimal not a whole number; merchandise which is left unsold) and “remains” meaning the body or body parts after death.
4.5. Furthermore, the Electoral Commission report suggests that the Commission was influenced by the Leave campaign (pg 1). One wonders to what extent and in what ways the Electoral Commission may have been “played” by the advocates of such disruptive change.
5.1. Both Parliament and the Regulator failed to ensure sufficient planning was made in the eventuality that the Referendum upset the status quo. This has been in plain evidence.
5.2. The Electoral Commission knew from its research that voters would have “a lack of clarity regarding what each voting outcome would mean in practice” (2015, 3.27). Yet sections 3.72-3.75 show just how unresolved voting outcomes were; with this knowledge, whatever standards for designing and communicating outcomes that the Regulator set were plainly inadequate.
5.3. For weeks after the Referendum, the gov.uk website failed to provide any assurances to EU citizens residing in the UK about their status. The lack of preparation was astonishing.
September 2016
References
The European Union Referendum Act 2015 (2015 c. 36)
Referendum on Membership of the European Union: Assessment of the Electoral Commission on the proposed referendum question (2015)
The Good Friday Agreement (1998)