Memorandum by Professor Rodney Brazier,
University of Manchester|
1. This memorandum is limited to one issue only.
It arises from the first of the four questions posed by the Constitution
Committee in its Call for Evidence. It is the extent to which
the adoption of the proposed Constitution of the European Union
illustrates the need for new rules to govern whether particular
constitutional questions should be subject to an advisory referendum.
I appreciate that that question may not be uppermost in the Committee's
mind in this present inquiry, and in addressing it I may resemble
students who answer exam questions that they wish to see rather
than those which are actually set. But I feel strongly that the
adoption of the proposed European Constitution provides a compelling
example of a fundamental defect in the United Kingdom constitution.
2. The Constitution Committee has already said
that the circumstances in which referendums should be held and
what conditions should attach to them deserve a full inquiry.
I hope that one result of the Committee's present investigation
will be that it will conduct such a full inquiry as soon as circumstances
3. I expressed my concern to the Committee in
an earlier inquiry about the absence of rules in the United Kingdom
which might govern the process of constitutional change.
In essence, there is no formal, legal mechanism in the United
Kingdom constitution which prescribes how changes may be made
to the constitution. No special majorities, or compulsory referendums,
or other formal procedures are required, merely legislation passed
in the ordinary way. So if a Government can get its legislation
through Parliament, that is all that is needed in order to make
constitutional changes, regardless of how important they may be.
It is entirely for the Government of the day to decide whether
to obtain any independent evaluation of possible constitutional
reforms, whether and how to consult about them, and whether to
hold a referendum. This freedom of manoeuvre has produced odd
results. Under the present Government, House of Lords reform
was preceded by a Royal Commission; possible change to the Westminster
voting system was considered by an independent commission; and
the public was comprehensively consulted on both issues. By contrast,
there was no pre-legislative inquiry nor, therefore, any systematic
consultation before the Human Rights Bill was introduced. Moreover,
referendums were held on possible devolution to Scotland, Wales,
Northern Ireland, London, and on whether local electors wanted
an elected mayor, but not (for instance) on Lords reform, or on
the incorporation of the European Convention on Human Rights.
Is that complete freedom of action defensible in constitutional
4. My view remains that all major constitutional
changes - what the Committee would call "principal"
changes - should be preceded by the maximum consultation, by independent
analysis, and where possible by cross-party agreement about them.
And before being implemented the most important constitutional
changes should be put to a national advisory referendum. (Indeed,
approval at a referendum would be the next best thing to cross-party
agreement if a Government were unable to achieve political consensus.)
5. The Political Parties, Elections and Referendums
Act 2000, Part VII, sets out a detailed legal framework to ensure
that referendums above local level are conducted fairly. But
it is of course notorious that the Act is silent on the circumstances
which would trigger a referendum. Any national referendum must
be authorised by fresh primary legislation passed for the purpose.
The only time that a Government has thus far caused such legislation
to be passed was for the 1975 referendum on whether the United
Kingdom should remain in the European Community. Such legislation
is also required for sub-national referendums, of which there
have been several (including the devolution polls in 1979 and
1998), and of which there will be more (on possible English Regional
6. Historically, resistance to national referendums
in this country was based in part on the abuse of such polls in
the 1930s by the dictators, and in part by parliamentarians' desire
to maintain parliamentary supremacy and the representative function
of MPs. But now that referendums have been held for a national
purpose and for devolution purposes - even down to the level of
whether local government electors would support the creations
of elected mayors - that historical resistance must, I think,
be taken to have reduced, although plainly the constitutional
position of Parliament and of MPs remain significant factors in
the future of possible referendums at national level. Indeed,
the present Government is committed to further national referendums,
of its own choosing, on the adoption of the euro, and on any possible
change to the Westminster voting system.
7. Currently, a debate is going on about whether
there should be a referendum about the proposed European Constitution.
The Government opposes one on the grounds that it is an insufficiently
important question, given the nature of the document itself, given
that the main issue about the United Kingdom's relationship with
the then European Community was settled in 1975, and given the
promise of a future referendum on the single currency issue.
Others argue for a referendum, on grounds which include the importance
of the treaty as a fresh statement of the fundamental rules for
the European Union, and the nature of the changes which would
be made by it. That these arguments can be made on either side
demonstrate the inadequacy of the present ad hoc situation concerning
referendums. The drawbacks of that situation include the following.
(i) Political - sometimes, as currently,
party-political - arguments can break out about whether a particular
constitutional question should or should not be put to a referendum.
While political debate is to be encouraged, it should not have
to rage around the working rules of the constitution in particular
(ii) The traditional, ad hoc, approach to
referendums enhances the control of the Government of the day
over constitutional development. Ministers have the final say
about whether there will be a referendum: the Government decides
purely at its own discretion whether a poll should take place.
Constitutional arrangements, in the main, should ideally not
be at the disposal of the Government of the day, and should not
allow it to pick and choose which method should be used for a
(iii) A Government which is free to decide
whether to hold a referendum may be tempted to do so for what,
in purely constitutional terms, is an illegitimate reason. The
1975 referendum was designed as much to hold the then Government
together as to get an answer to a constitutional question - although
a referendum at some stage (and ideally before entry to the then
EC) was, in my opinion, constitutionally desirable. And a Government
may be tempted to resist a referendum on an equally illegitimate
- though entirely understandable - ground, namely, that it might
produce the "wrong" result for Ministers. It has been
claimed that worry about the outcome is a crucial part of the
present Government's current resistance to a referendum on the
European Constitution. Standing rules could largely remove the
Government from the decision whether to hold a referendum on a
(iv) The ad hoc approach produces inconsistent
decisions about whether to hold a referendum. Examples were given
above in paragraph 3. If there are to be any referendums at all,
matters that are broadly similar in constitutional importance
should be subject to broadly the same mechanism for resolution:
questions of broadly similar importance above a certain threshold
should be subject to a referendum. How that threshold should
be defined could be decided by new rules, or possibly could be
left to the judgement of a body independent of government.
(v) The ad hoc approach to referendums,
requiring an ordinary statute to authorise a particular referendum,
contributes to the view that constitutional change is qualitatively
the same as change in any other area of public policy. It is
not: the rules under which a state is governed are (or should
be) of a different quality to the rules that are produced to implement
particular areas of public policy. Constitutional rules are (or
should be) different from other rules, and they should be established
in ways which underline that difference. In other words, constitutional
rules should be established and changed in ways which are unique
to them, including for the most important by the use of a referendum.
8. Those drawbacks would be reduced if agreement
could be reached about what should trigger a national referendum.
Rules could be incorporated into legislation which would provide
standing authority for any future national referendums. I do
not say here what those rules might be. There are several approaches
to writing them. The rules might require a national advisory
referendum before existing and listed constitutional legislation
was amended or repealed. Or the rules might require a referendum
if a proposed change would affect specified areas of the constitution,
such as the monarchy, or the composition or powers of either House
of Parliament, and so on. Or the rules might require a specified
body, perhaps using criteria listed in the rules, to judge whether
a constitutional referendum should be held. The Constitution
Committee itself could be one candidate for such a role. What
I am clear about is that the current debate about whether, and
if so how, the United Kingdom should ratify the proposed European
Constitution will intensify rather than abate. It is, I believe,
a perfect illustration of why more work should be done on the
place of national referendums in the United Kingdom constitution.
29 August 2003
114 Select Committee on the Constitution, "Changing
the Constitution: The Process of Constitutional Change",
4th Report, HL 69 (2001-02), para. 80. Back
pp 50-52. Back