Examination of Witnesses (Questions 156-174)
Professor Michael Marsh and Dr Helena Catt
3 FEBRUARY 2010
Q156 Chairman: Dr Catt and Professor
Marsh, can I welcome you to the Committee and thank you very much
indeed for joining us? We are being sound recorded and so I will
ask you, if I may, to formally identify yourselves for the record;
and if you wish to make a brief opening statement, please feel
free to do so. You are under no obligation to do so.
Dr Catt: I am Dr Helena Catt. Most recently I was
the Chief Electoral Commissioner in New Zealand; prior to that
I was an Associate Professor in Politics at the University of
Auckland. I will not be making a brief statement, I will just
go straight to questions.
Professor Marsh: My name is Michael Marsh: I
am Professor of Comparative Political Behaviour at Trinity College
Dublin; and I will not be making an opening statement. Again,
I would move to your questions rather than my views.
Q157 Chairman: Thank you both very
much. Can I kick off by asking what you each think about the strengths
and the weaknesses of referendum as an instrument of political
activity?
Dr Catt: I think there is only one possible
strength and that is that in some instances it can legitimise
a question about how democracy works. So to answer your last question,
I think the only time they are useful is on a question about democracy,
for instance the electoral system or devolution. The negatives—I
think there are many. I think that they polarise issues, they
isolate one issue and divorce it from the relating issues. They
are very expensive to do properly and if you are not going to
spend the money on it, it is not worth doing it. It is very hard
to take a complex issue down to a "yes" or "no"
so I think that they are very hard to do well and in many subjects
it is not the right answer. I would say that there are many weaknesses
and very few strengths.
Professor Marsh: One of my colleagues wrote
the other day about electoral reform in Ireland and said that
if electoral reform is the answer it must be the wrong question
and I feel a bit like that with referendums: if referendums are
the answer then we are asking the wrong question. I think there
are all sorts of apparent strengths of referendums: they involve
the people widely, they allow them to have a direct say; they
are clearly educative; they move us beyond narrow parties to involve
everybody, just as should be done in a democracy. The unfortunate
thing is that on the whole it does not do any of those things
and quite often it leaves you worse off than you were before.
That is probably not to say that there are not times when a referendum
seems to be a reasonable safeguard for the people. There were
a couple of referendums about changing the electoral system in
Ireland which were defeated, and most of us would probably say
it was a good thing that they were defeated as well. Most countries
do not need referendums to change the electoral system; they do
not have parties trying to take very narrow advantage in terms
of electoral reform, as we have seen very often in France; and
I think if you do have a problem of that sort the solution is
not in referendums, you just have big problems which are not solved
by referendums. So generally, if your remit states "shall
we have referendums or not?", I pass on that one.
Q158 Lord Norton of Louth: We have
dealt with the issue, if you like, of principle, but if we come
on then to the practice. If you turn to New Zealand you are in
a similar situation to us in that there is no codified constitution
so you have the problem of what triggers a referendum. The actual
practice, if you could explain what the process is, what is the
role of the Electoral Commission, and, from your point of view,
what do you see as the benefits and the problems associated with
the actual practice?
Dr Catt: There are three separate sorts of referenda
in effect in New Zealand and they all have different triggers
and different rules. The Citizens' Initiated Referenda is triggered
by a petition from parliament but is non-binding, and is probably
the best example of how not to run referenda in the world. The
Electoral Commission has no role whatsoever in relation to Citizens'
Initiated Referenda. The Chief Electoral Office that runs the
elections, as opposed to the Electoral Commission that does education
and finance control, actually does the campaign expense component
to Citizens' Initiated Referenda, and the legislation there is
also not one to be copied. Basically the Citizens' Initiated Referenda
and legislation is problematic in every single respect. I would
say that I do not think there is a single part of that legislation
that works well. All other referenda are initiated by government
and there is a new piece of legislation for each one, we do not
have any standing legislation about how referenda are run. Each
time there is a referendum they pass a piece of legislation and
set out the rules for that referendum. So they have been different;
the different government-initiated ones have had different rules
around them as to whether they are binding or not, as to whether
there is a government-funded education campaign, as to what role
any other body has. A referendum is being proposed by the current
government on the electoral system and they are going to set up
an independent panel to run the education campaign; they are not
going to give that role to the electoral administration bodies.
That was what happened in 1992-93 with the last votes on the electoral
system. I would say that whilst Citizens' Initiated Referenda
are an example of how not to do it, the referenda in 1992 and
1993 are probably an example of how to do it; that if you really
do want to have a referendum, that one was done well mostly because
it had a year-long, very well-funded, independently-run education
campaign that went with it. I think that is what makes the difference
and it is expensive. The regulation is ad hoc really and
depends a lot on what question it is and the views of parliament
at that time.
Q159 Lord Norton of Louth: You mentioned
earlier that it depends on what the question is. Who actually
decides the question?
Dr Catt: Parliament.
Q160 Lord Norton of Louth: Do you
have any role in commenting on that? Is there any independent
body that does?
Dr Catt: On the Citizens' Initiated Referenda
the Clerk of the House is meant to coach the people putting it
up as to how to write it well, but the problem has been that most
of the people putting up questions have been quite insistent that
their question is correct even when it does not meet any of the
guidelines, and the Clerk has no power to make them change it.
For every other one nobody has a right of comment, but in New
Zealand any member of the public can make a submission to the
committee that considers a piece of legislation. The only comment
on how the question is written would be through that open submission
process; but nobody has a right, so it is decided by Parliament
in effect.
Q161 Lord Norton of Louth: And really
from what you are saying there are no generic rules?
Dr Catt: No.
Q162 Lord Norton of Louth: It is
distinct to each?
Dr Catt: Even though there have been quite a
few there is nothing that would be deemed to be tradition or norms,
except possibly that they are probably doing the Independent Committee
for Education on this upcoming MMP referendum because they did
it on the last one, in 1992 and 1993. It is kind of, "It
worked last time", so it looks like they have just blown
the dust off the briefing papers from last time and brought them
forward again. No, there is no generic and no tradition.
Professor Marsh: There are certainly things
to learn from the Irish experience of referendums. I notice my
colleagues were described as being "fairly positive"
about the referendum experience in Ireland, and they certainly
did say that, but I think the subtext in there is how on earth
did they come to that conclusion because much of what they say
is fairly negative. In terms of the rules governing referendums,
referendums are necessary in Ireland to change the constitution
and all the referendums we have there are to change the constitution.
Sometimes it is because politicians decide they want to change
the constitution and sometimes it is the courts that say you need
a referendum; for instance, to adopt the Single European Act you
need a constitutional change. In at least one case politicians
were persuaded by interest groups that they needed to change the
constitution and that was probably the worst case of all. In terms
of running referendums, originally nothing was done at all. I
think that referendum rules tend to follow rules for elections
and since we really did not have any expenditure or campaigning
rules for elections we did not have any for referendums. They
develop slowly, as many things do, by reference to the courts
and also by reference to the experience of referendums. So originally
the Government would campaign for its own referendum and other
people would do their best to campaign against it if necessary.
That was taken to court and the court said that it is inappropriate
for the Government to spend taxpayers' money putting its own point
of view. It seems perfectly reasonable to me in many cases. The
Government spends its own money passing its own legislation and
some kind of legislation is defined as constitutional and therefore
it cannot spend its own money. I do not really accept that, but
that is the general view. So a Referendum Commission was then
set up and the Referendum Commission was one of the more ludicrous
bodies. It was responsible for putting forward the case for and
against. Everybody made submissions to this learned body, chaired
by a High Court judge, as they always are, and they bought lots
of television advertisements and you would have actors saying,
"I think we should sign the Treaty of Nice because it is
a really good idea because it will ... " Then somebody else
would say, "But I am very concerned ... " And it was:
"who are these people?" That was responsible for both
informing people and giving them the views for and against. I
apologise to all the learned judges here, but I think that only
people soaked in the law could come up with a view that that was
the way to educate the public. The final upshot of that was the
total failure of the Treaty of Nice both to get any turnout and
to get any support. Then they thought, "Maybe that is not
a good idea and we need the Referendum Commission to inform people
but we really have to leave it to the public and parties to actually
move themselves and get out to argue for what they believe in."
So we moved to that situation and that has been the case since.
The other change we had was about access to the media and it is
really laid down that access to the media really has to be equal
for both sides—at least fair for both sides. What does "fair"
mean? Before the last referendum on Lisbon the Broadcasting Commission
said that fair does not necessarily mean equal; it is not a matter
of having a stopwatch and it is not a matter of having someone
to say "no" every time you say "yes", it is
a little bit more flexible than that. These things are, I suppose,
continually under review. Even with the same system you can get
different results. For the first Treaty of Lisbon, without running
ahead of myself, the Commission was headed by a High Court judge
who prepared a document of about 20 pages to explain to everybody
what the Treaty of Lisbon was about and most people arrived at
the vote not knowing anything about it and, perhaps accordingly,
voted "no". The next time around there was a different
High Court judge. Now this one was actually very good, and it
was a much shorter document and he went on radio regularly on
Fridays and dealt with all the things that had been raised and
said, "No, that is wrong; that is right," and he was
pretty active and a very clear communicator; so he did a very
good job and in part was responsible—in a small part—for
the change in the vote. In terms of the rules governing how they
work, we are still making those up as we go along.
Q163 Lord Pannick: What is your ideal
system, if there is one, for the provision of information to the
public on this? Should government have any role at all?
Professor Marsh: The key thing that people need
to know in an argument about a referendum question is, "Who
is telling me this?" It is the basic question: "Why
is this person lying to me?" You want to know. It is fair
enough, I think, to have the Commission to propose some sort of
document, but generally I think it is really important that when
somebody puts up a poster you know who it is and when somebody
is campaigning you know what they are campaigning on behalf of.
The more transparency you have of funding the better and that,
I think, would be the thing I would be most concerned about—not
equal access time or necessarily funding equally, but that you
know who is spending whose money trying to persuade me to vote
"yes" or "no", because if I do not know that
then it is hard to be able to assess it. There is a lot of experimental
and other evidence on how people make up their minds when they
vote on all sorts of things. We know that people do not make up
their minds by judiciously considering all the issues and coming
to a well-reasoned, rational conclusion, they tend to go on instinct,
on what people call short cuts, and one of the short cuts might
be: "Is the CIA funding this?"—"No".
Whatever they say—"No".
Q164 Baroness Quin: Professor Marsh,
following up about the Irish experience, given that there are
obviously a lot of concerns about how referendums work is there
any move afoot to try and limit the use of referendums or, given
that that would just be seen as denying the public a voice, is
it just impossible to put referendums back in the box once they
are out of the box?
Professor Marsh: No, it is not impossible but
the only way to not have referendums would be to have a referendum
on not having referendums.
Q165 Baroness Quin: Do you have any
views as to whether that might ever happen?
Professor Marsh: It might, but it seems unlikely
that people would say, "That is great; we will give it up!"
Under the first Irish Constitution we actually had Citizens' Initiatives
as well and that got quietly buried by Mr de Valera in that debate
the second time around in the 1937 Constitution. I think many
people feel that at times it is beyond a joke. There is a difficulty
in a written constitution that requires a referendum to change
it. For instance, the language of the referendum is sexist so
it would be nice if it talked about men or women instead of men
all the time, or that it used even more mutual language. It would
take an awful lot of referendums to change. You either change
every clause with a separate referendum or you have a whole new
constitution with a referendum to adopt that—that is probably
the best way to go, to say: "There are all sorts of things
wrong with this constitution, we need a new one; we can clear
up all sorts of tidying things and maybe we will limit referendums
as a part of that", but I think that in the foreseeable future
there is no possibility whatever that the public would put up
with that because they would just assume that this was some cunning
ploy by politicians again.
Q166 Lord Wallace of Tankerness:
This seems the appropriate time to ask, because you have mentioned
the Lisbon Treaty referendums, Professor Butler expressed the
first time around, in the first Lisbon Referendum, about how a
"leading, flamboyant, rich man charged in and moved opinion
really quite substantially"; although the second time he,
"crashed in ... and had no impact at all." Could you
just comment on that and whether such interventions can be prevented,
should they be prevented and has there been any New Zealand experience
of one big financier, perhaps one organisation which has been
able to put in substantial resources and how do we deal with that?
Professor Marsh: It is certainly true that Declan
Ganley, the very rich businessman, had a big impact the first
time and maybe he had a big impact because the politicians had
gone missing, the government had its own problems, so there was
a vacuum and he stepped into it and he had the money to step into
it. It is almost certain that the "no" side outspent
the "yes" side. That is the only time they have ever
done that. And why should they not do that? Next time round the
"yes" side outspent the "no" side and won;
so if it was wrong the first time it was wrong the second time.
He did a very good job the first time; he argued very well. I
would not blame him, I would blame the complete failure of the
"no" side to mount any kind of copious campaign. It
seems to me very difficult, even if you wanted to do so, to prevent
third parties from having a role in referendum campaigns. That
is one of the arguments to have referendums, to move in outside
parties, to bring in the people more widely. Some people just
have more money than others and that is the nature of our society,
both here and there. So it seems to me that all you can do is
to try and look for some kind of transparency and a lot of the
argument about Ganley was, "Where is his money coming from?
Is it his money? He has all these shady links", it was said,
"with the American armaments industry and we know that they
do not like the EU, so is he just a voice for them?" This
goes back to the transparency argument I made before that people
want to know where the money is coming from. In the first referendum
I think that people accepted him at face value; in the second
referendum he was much damaged really by his failure to win a
seat in the European election, and by other activities.
Dr Catt: In the 1993 referendum in New Zealand
there were a number of businessmen who heavily funded a "no"
campaign, which they then lost; so the side with the most money
lost, which is very, very unusual in referenda. One of the few
stats that are known quite clearly about referenda is that the
vast majority of the time the side spending the most money wins;
so New Zealand 1993 is one of the few examples when that was not
the case. I think you do need spending caps in referenda campaigns
of some kind so that people cannot come in with excessive amounts
of money, whatever the cap is decided it should be. Transparency
is necessary as well in that kind of financing. I think one of
the important things in the New Zealand case was that there was
this independent government-funded education campaign alongside
the "vote this way—vote that way" campaign, so
there was the actual information as well as the arguments for
both sides, and most of the political parties were also campaigning—mostly
against a change in the electoral system as well. So there was
a lot of other campaigning going on as well, but, yes, big money
went in there.
Q167 Lord Lyell of Markyate: Looking
around the world, what assessment would you make of other nations'
experience of referendums? Are there any cases that the Committee
should consider as good examples of the use of referendums? I
think you have already indicated that there are plenty of bad
examples, but are there any of good examples?
Dr Catt: No, I do not think so. There are really
good examples of bad ones. I think the Australian one and the
republic is a fantastic example of how to ask the question to
get the answer you want, in that the majority of Australians,
as far as the polls said, wanted a republic; but from the way
that the question was worded and the particular option given to
them a lot of people who wanted a republic did not want that form
of it. I think that the referenda in both British Columbia and
Ottawa on changing the electoral system are a really good example
of if you do not do a good informational campaign and you do not
give voters time to think about it then it is not going to work
well. So those are really good bad examples, but I cannot think
of any really good examples.
Professor Marsh: Broadly I would go along with
that, following the comments I made earlier. I do think that it
is reasonable to have referendums to set the very narrow rules
of the game, perhaps on the electoral system, but if you have
them on the electoral system you certainly do need a very long
time to explain to people what it is, even when it seems quite
simple, as it did in Ireland, and do we want the current system,
which people understood, or do we want first past the post, which
it does not take a rocket scientist to understand. That seemed
simple enough but even that was much more complicated than it
seemed. There have been referendums elsewhere on that; there have
been referendums on things like the voting age, although why you
need a referendum on the voting age I do not know. The Swedes,
for instance, had three referendums on the voting age: the first
was, "Do we drop it from 21 to 18?" and a huge majority
said "no". About five years later, "Shall we drop
it from 21 to 20?" and a small majority and a lower turnout
said "yes". Then five years later they said, "Shall
we drop it from 20 to 18?" There was a lower turnout again
and a smaller majority again said yes; so they finished up with
it. I think that sort of exercise has much to commend it. The
other one, I suppose, where you might argue that they are useful
is on basic issues of nationality—"Which country should
we be governed by?"—and there are times when one can
see that that provides legitimacy to particular political decisions.
The Good Friday Agreement referendum in Northern Ireland and in
the Republic, in the Republic I think it was relatively trivial
but in Northern Ireland it was quite important to get the majority,
although there is still some doubt about whether it was a majority
of Unionists for that, which I do think helped legitimise the
views on peacekeeping. But elsewhere it is the bad things that
tend to spring to mind rather than the good ones.
Q168 Lord Woolf: I think in many
ways, Professor Marsh, you have already answered this but perhaps
I should just give Dr Catt an opportunity to do so. Assuming that
there is going to be a referendum do you have any principles that
should be applied to the information that the electorate is given?
Dr Catt: I think after you write the question
the information that voters are given is the most important component
of running a good referendum. I think that voters need simple,
easy to understand information, on what the different options
are provided by an independent body, using good communication
methods.
Q169 Lord Woolf: Such as?
Dr Catt: Delivered in a variety of ways. I think
one of the reasons that the New Zealand one worked is partly it
lasted a year. People do not go around thinking about electoral
systems all the time; they need to start thinking about it. Although
we had first-past-the-post it soon became apparent that a lot
of voters did not actually understand first-past-the-post. They
thought they were electing the government and they were not, they
were electing their local MPs. So there was a lot of misunderstanding
about even first-past-the-post. There had to be education about
that and for a different alternative to the electoral system.
So there were five electoral systems being explained. A lot of
it was "Keep it simple" and the booklet that the information
campaign had in the end had one page for the basics of each system.
It was done graphically and also there were good TV ads done,
there were radio debates, there were TV debates, there were lots
of people who went out and did talks to Rotary, Women's Institutes,
church groups, all the local community groups. People went out
and talked to them so that there was a lot of information provided
in a lot of ways.
Q170 Lord Woolf: That was presumably
by the Government and the two parties? When I say "the Government",
an independent body and by the two parties?
Dr Catt: All of that information was the independent
body, and then there were also interest groups campaigning for
the status quo and for MMP, which is the option we have at the
moment. A lot of politicians actually kept quiet because most
of the politicians were opposed to change, but it became very
clear very early on that every time a politician said, "We
do not want change" another 2,000 voters decided they would
vote for change. So mostly the politicians kept quiet after a
while because they were seen as "If they think it is good
it must be bad". There was that kind of view going on in
New Zealand politics at the time, so actually a lot of the politicians
kept quite quiet. There was division inside the major parties
as well; there were members of both of the major parties for change
and against change, so it was not as if there was a united political
party view from the major parties. Mostly it was the independent
body—and it truly was an independent campaign—and
then the different pressure groups that were doing the campaign
and talking about it and stuff.
Q171 Lord Woolf: Professor Marsh,
would you like to add something to that?
Professor Marsh: No, I have probably made all
the points I want to make about education. I spoke to the parallel
Committee to this one—a little bit broader and in both chambers—our
Committee on the Constitution about referendums about a year ago
and there were a couple of points I made that may bear repeating.
One is that if you want to set up a Referendum Commission to inform
people why do you pick a judge, why do you not pick a tabloid
newspaper editor to do it? Or somebody whose expertise lies in
communication? I think that needs to be thought about. The other
point I wanted to make will come back to me in a minute, but it
has just disappeared!
Q172 Lord Pannick: Do you have any
views on the role of the United Kingdom Electoral Commission under
the statutes or any views on the performance of our Electoral
Commission in relation to referendums?
Dr Catt: I think that somebody has to oversee
regulation of spending and the Electoral Commission seem to be
the sensible people to do that—they are doing it anyway.
Somebody has to provide an independent education campaign and
we feel that the Commission has good experience in that as well.
I would be quite happy to see them taking on both of those roles
as long as their independence in running the education campaign
is guaranteed and there is no government interference in how the
education campaign is run.
Professor Marsh: I would go along with that.
I think it is recognition of the need for some kind of regulation
and quite a lot of regulation about transparency, some of which
we simply do not have in Ireland at the moment, and I think that
is useful to be built on. Obviously it has not worked in a lot
of referendums yet so we need a bit more experience, and as a
political scientist I guess I ought to know more before I talk
about it.
Q173 Lord Rodgers of Quarry Bank:
Would you say something further about multi-option referendums?
I am not quite clear in my mind how it would look and what the
design would be, if I may put it this way. At the moment, as you
know, there is a great deal of discussion about whether the Prime
Minister is proposing a referendum on what is called "fair
voting" which means less unfair voting. I think that the
two alternatives to the present voting system might be the AV
system and the other is the STV system. On the face of it, it
would be quite sensible, if we want to get a clear decision of
what the public have in mind, to put those two propositions on
the ballot paper. Could you say a word or two about how best to
design it and how effective it would be to make sure of maximum
vote and a fair choice?
Dr Catt: The 1992 referendum in New Zealand
did have such a question. It actually had two questions. The first
was: "Do you want the status quo or do you want to change
the electoral system?"—two options. Then the second
question was: "If the system is going to be changed which
of the four following options would you prefer?", and you
only got one tick so you could only choose one. As it happened
one system, MMP, the one we have now, won way ahead of everything
else, mostly because it was the system that had been recommended
by the Royal Commission that had investigated the question of
which electoral system should New Zealand have. So it had some
history and it was the only one that any pressure groups were
arguing for; nobody was arguing for the other three options. It
was an unusual campaign and, therefore, it turned out okay because
it was way ahead. If the situation had been different and two
of the systems had been very close then I do not think the next
stage in the process would have had the same legitimacy. I think
that there is a real legitimacy issue if you are putting up several
options: who is the winner? You might want to use a preferential
voting system to choose the options but then it is harder if the
argument is about do we want a preferential system in elections.
It might be seen as skewing the argument if you then use a preferential
system in the referendum. By and large I would say avoid multi-option
referenda when you can. To be slightly frivolous, the Australian
example of choosing their National Anthem is a really good example
of multiple choice referenda, giving everyone a result with which
nobody was particularly happy. They had four options and the anthem
they have now, which was not the most exciting of the ones that
was on offer to them, came through the middle because people were
polarised as to the other options. It is one of the few other
examples of where multi options were used. So it is fraught, particularly
if there is a good chance that two of the options will get quite
a close result.
Chairman: Was that Advance Australia Fair? A final
question from Lord Hart.
Q174 Lord Hart of Chilton: You have
mentioned funding of referendums and I think from what you have
said it emerges that you are in favour of the body regulating
funding and the rule is that there should be clarity, fairness
and transparency. Are there any other principles that you think
should guide it? Dr Catt, in New Zealand there has been capping—and
you mentioned capping—could you tell us a little about how
capping works?
Dr Catt: Capping for the Citizens' Initiated
Referenda. It is actually quite problematic. The pro side and
the anti side are both capped. One of the problems is that the
cap is ridiculously low, so it means in effect there is no campaigning
it is so low. The other really big problem is that there is often
more than one group on each side, but the cap says that there
is this amount of money for the pro side—all of them—and
this much for the anti side. So who has to choose? Who are the
pro side and the anti side? In terms of administering it, it is
good that it is so low because in effect nobody really does anything,
so it takes the issue away, but in the legislation that they will
bring in for the referendum on changing the electoral system this
is one of the things that they are really going to have to grapple
with. Are you going to let as many groups as you like do it and
then how do you stop one rich group setting up ten splinter groups
so that they can get round the cap? Regulating finance in elections
is always fraught and people will always try and get round the
letter of the law; but I still think in principle that there should
be a cap on how much can be spent. It is a minefield trying to
regulate it.
Professor Marsh: I think that the transparency
and the accountability is the good thing. In an ideal world caps
would be nice to ensure greater fairness, but I just think that
the difficulties of dealing with that are too great and, to some
degree, run counter to the purpose of having referendums, or at
least to some of the apparently good things about having referendums,
to bring in people in the first place. Just one other point, if
I may—it flew back into my head—about information.
I was talking to one of our Deputies about the poor information
in Lisbon 1 given to people and he complained that when he knocked
on a door and said, "I have come to talk about the Lisbon
referendum" people would say, "I do not want to know"
and shut the door. This is one of the difficulties in informing
people about referendums; they do not necessarily want to know,
they have other much more important things on their mind—"Big
Brother is just on the television; go away, I do not want
to know." It does not fit too well with some of our notions
about democratic theory but I think it is like youth is wasted
on the young, democracy is sometimes wasted on the people.
Chairman: On that note, Dr Catt and Professor Marsh,
thank you very much indeed for joining the Committee and for the
evidence you have given.
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