CHAPTER 2: ReferendumsArguments
for and against|
Claimed positive features of referendums
13. Evidence in favour of referendums and citizens'
initiatives (a related device which we discuss in more detail
in Chapter 4) included:
THAT REFERENDUMS ENHANCE THE DEMOCRATIC
14. Witnesses referred to arguments that referendums
enhanced democracy by giving voters greater opportunities for
involvement. Caroline Morris, Senior Research Fellow, Centre of
British Constitutional Law and History, Department of Law, King's
College London, cited academic arguments that "referendums
are a 'first-best' form of democracy for which representative
democracy (the 'second-best' form) attempts to substitute"
(p 127). Professor Stephen Tierney, Professor of Constitutional
Theory, University of Edinburgh, asserted that referendums could
be seen as "'pure democracy' ... unmediated by representatives;
a symbolic reminder that democratic authority finds its legitimacy
in the consent of the people" (p 48). Professor Graham
Smith, Professor of Politics, Centre for Citizenship, Globalisation
and Governance, University of Southampton, argued that referendums
offered the potential "to reshape the political division
of labour between citizens and legislators" (p 15).
15. Professor Bogdanor thought that it was "illusory"
in the modern world "to believe that you can confine legislative
matters solely to parliamentarians" (Q 78). The Government
acknowledged arguments that referendums could ensure that the
public are consulted on significant issues (p 94).
16. Peter Browning argued that "at a time
when public trust in this system is probably lower than ever in
living memory", referendums could help restore faith in British
democracy (p 112). Nigel Smith made a similar point (p 144).
Unlock Democracy argued that referendums could help to counteract
the sense of cynicism and powerlessness amongst voters (p 18).
The Government stated that it could be argued that referendums
could help strengthen confidence in the UK's democratic system
17. Professor Robert Hazell, Director, Constitution
Unit, University College London, argued that referendums could
be "an important legitimising mechanism", by demonstrating
that a policy has the specific support of the public (Q 5),
as did Professor Michael Gallagher, Professor of Comparative Politics,
Department of Political Science, Trinity College Dublin (p 120).
Dr Eoin O'Malley, School of Law and Government, Dublin City
University, stated that referendums could give a decision "democratic
weight" (p 129). Peter Browning suggested that the 1975
referendum on whether the UK should remain in the European Community
had helped to ensure popular acceptance of the UK's membership,
but that the Government's failure to hold a referendum on the
Lisbon Treaty had undermined its legitimacy in the eyes of some
sections of the British people (p 113).
18. The Government stated that it could be argued
that referendums could provide the government of the day with
a mandate to undertake change, and could provide Parliament with
an indication of public opinion on a given issue (p 94).
The Rt Hon Michael Wills MP, Minister of State, Ministry of Justice,
said that referendums could "legitimise a significant change"
THAT REFERENDUMS CAN BE A "WEAPON
19. In the opinion of some witnesses, an important
feature of referendums was that they make it difficult to reverse
a policy that had demonstrable public support. Unlock Democracy
asserted that they were one of the few ways under the UK's constitutional
settlement that Acts of Parliament could be entrenched: "This
is not to say that the Acts are codified, just that if a measure
has been endorsed in a referendum it would not be politically
possible to repeal it without a further referendum. This is particularly
significant as it ensures that constitutional changes, such as
devolution, have some time to establish themselves rather than
being subject to an immediate repeal if there was a change of
government" (p 18).
20. Likewise, Dr Andrew Blick, Federal Trust
for Education and Research, argued that referendums had helped
to place new institutions such as the Scottish Parliament and
Welsh Assembly, as well as the Northern Ireland peace process,
on a stable footing (p 110).
THAT REFERENDUMS CAN "SETTLE"
21. Some witnesses argued that referendums were
able to "settle" a debate on a controversial issue,
at least for a period. Peter Kellner, President, YouGov, argued
that the 1975 referendum on membership of the European Community
"put to bed" the issue "for a generation"
because "the opponents of British membership accepted that
verdict for a period and without the referendum it might have
been re-opened" (Q 45).
22. Professor Gallagher referred to the outcome
of the Irish referendum on divorce in 1995, when divorce was approved
very narrowly and then "ceased overnight to be a political
issue; opponents immediately folded their tents following this
decision in a way that they would have been very unlikely to do
had the decision been made by Parliament alone" (p 124).
THAT REFERENDUMS CAN BE A "PROTECTIVE
23. Witnesses saw the value of referendums as
a "protective device", a safeguard against controversial
decisions being taken unless and until public support could be
demonstrated. Professor Hazell opined that this was the case in
Northern Ireland, where people have been told since 1973 that
Irish unity will not occur save with the consent of the people
24. Professor Bogdanor asserted that the key
to the referendum's constitutional role was that it should constrain
the government of the day. He argued, for example, that it would
now be very difficult for a government to avoid having a referendum
on a devolution matter (Q 74). Peter Browning argued that it would
also be almost impossible for the UK to adopt the European single
currency without holding a referendum (p 113).
THAT REFERENDUMS ENHANCE CITIZEN
25. Other witnesses opined that referendums enhanced
public engagement with the democratic and political process. Dr
Daniel A. Smith, Associate Professor, Department of Political
Science, University of Florida, asserted that by offering the
opportunity to participate directly in policy-making, they made
the public more likely to participate in political activity, "as
they understand that their participation in the electoral process
has real policy implications" (p 141).
26. Caroline Morris suggested that referendums
could combat "political alienation and malaise" (p 127),
and Navraj Singh Ghaleigh, Edinburgh Law School, argued that an
appropriately well-structured system of direct democracy could
"create incentives for engagement" (p 139). Professor
George Williams, Anthony Mason Professor, Faculty of Law, University
of New South Wales, argued that referendums had helped "to
generate popular ownership and legitimacy in Australia's constitutional
structure" (p 150).
THAT REFERENDUMS PROMOTE VOTER EDUCATION
27. Some witnesses recommended referendums for
the debates that they could engender to promote political knowledge,
as with Unlock Democracy's mention of "the opportunity for
public education and discourse on a contentious issue" (p 22).
Dr O'Malley stated that referendums allowed "the people and
political class to focus on an issue in quite a concentrated way",
thus enabling citizens "to learn quite deeply about the topic"
(p 129). Dr Daniel A. Smith reported that research into
experience in the US, Switzerland and Canada showed that direct
democratic tools enhanced political knowledge of the issue in
question amongst citizens (p 142).
28. Professor Bogdanor argued that the 1975 referendum
on the European Community had raised awareness of the issues in
question (Q 78). Likewise, Professor Hazell argued that the
referendum campaigns in Scotland, Wales and Northern Ireland raised
awareness about the proposals for devolved assemblies (Q 5).
THAT VOTERS ARE ABLE TO MAKE REASONED
29. In response to those who queried whether
referendums were a suitable vehicle by which to determine policy
on complex issues, some
witnesses asserted that voters are well-equipped to make reasoned
judgments on issues put before them at referendums. Peter Facey,
Director, Unlock Democracy, argued that voters were "perfectly
capable" of making a complex decision, so long as there was
adequate public education (Q 42). Professor Gallagher suggested
that, if pushed too far, "the arguments highlighting the
supposed incompetence of voters to decide on specific policy issues
... can become an argument against allowing people to vote at
elections" (p 121).
30. Jenny Watson, Chairman of the Electoral Commission,
considered that "most things can be explained and distilled
down to a reasonably simple premise" (Q 193). Michael
Wills MP agreed that "complex technical issues can with effort,
hard work, rigour, intelligence be distilled down to certain key
principles and choices ... it would be a terribly retrograde step
to take the view that some issues are just too complicated to
bother the people's heads with. That would be a return to an aristocratic
principle of government that we have, fortunately, long since
rejected in this country" (Q 238).
THAT REFERENDUMS ARE POPULAR WITH
31. Some witnesses suggested that referendums
were popular with the public. Unlock Democracy asserted that this
was so, because they are seen as a fair way of resolving difficult
or significant issues (p 18). Professor Bogdanor asserted
that studies of the international use of referendums showed that
people welcomed the opportunity to participate so long as they
thought that their participation would have some result and was
not a "talking shop" (Q 85).
32. Professor Tierney said that while the turnout
on ordinary referendums might be low, evidence suggests that referendums
on "big constitutional issues", such as the Belfast
Agreement, the Danish referendum on the euro, and referendums
on independence in Montenegro and Quebec, produced a high turnout
THAT REFERENDUMS COMPLEMENT REPRESENTATIVE
33. A number of witnesses stated that referendums
could complement representative democracy. Professor Bogdanor
argued that "the dichotomy between 'representative' and 'direct'
democracy is ... highly misleading. For the referendum, even in
Switzerland, is used not to replace, but to supplement representative
democracy. There is little danger that it will come to subvert
parliamentary government" (p 45). Professor Michael
Saward, Professor of Politics, Open University, opined that enhancing
the role of the referendum could enhance representative and parliamentary
democracy (p 15). Professor Gallagher stated that "we
cannot point to any case where the referendum has led to the collapse
of a democratic system ... If used sparingly ... and in a regulated
fashion, the referendum can enhance rather than subvert representative
democracy" (p 120).
34. A number of witnesses pointed to international
experience, for instance in Australia, New Zealand, and the Republic
of Ireland, where, it was argued, referendums and representative
democracy successfully coexist (QQ 10, 54, pp 19, 133).
35. Michael Wills MP told us that it was a "fundamental
proposition that referendums ... should not be any kind of replacement
for representative democracy; they are an augmentation of it in
circumstances where there are fundamental changes" (Q 217).
Claimed negative features of
36. Witnesses recited a number of drawbacks to
the use of referendums:
THAT REFERENDUMS ARE A TACTICAL
37. A principal objection to referendums was
that they may be used as a tactical device by the government of
the day. Professor David Butler, Emeritus Fellow, Nuffield College,
University of Oxford, told us that referendums in the UK "are
only going to happen when the Government of the day wants it or
when it would be too embarrassing (because of past promises) to
get out of it. Normally they will have a referendum because they
think they are going to win it and they will not have it if they
are not going to win it. They will just dodge the issue. It is
a matter ... of straight politics" (Q 5).
38. Steve Richards, Chief Political Commentator,
The Independent, said that "a leader does not dare
hold a referendum unless they are convinced they are going to
win it, so they are tools for leaders to avoid decisions ... It
looks as if they are being rather noble in giving powers away
from themselves to take decisions and giving them to the voters
to do it. The motives for holding them are far more complicated
than that" (QQ 123, 131).
39. Peter Kellner argued that the decision to
hold the 1975 European Communities referendum "was a constitutional
outrage ... it was wholly to do with holding the Labour Party
together" (Q 46). Other witnesses made similar points
(QQ 84, 125). Professor Bogdanor asserted that the offer
of the 1979 devolution referendums was made for tactical purposes
in order to overcome backbench opposition in Parliament (Q 79).
40. Steve Richards argued that the 1997 Labour
manifesto "was almost like a halfway bridge to power and
then a lot of the awkward decisions and debates took the form
of promises of referendumsthe euro, Scottish Parliament,
London mayor, electoral reform" (Q 122). He also told
us that the decision to hold a referendum on Scottish devolution
was only made because Tony Blair, observing that a referendum
had been proposed on the euro, "did not think he could go
through an election campaign with that contradiction ... it was
not that he thought out of principle 'We must do this'; he was
worried about the contradictions in a Labour election campaign"
41. Michael Wills MP opined that the referendum
had been used in the UK as a "political tool", but did
not see anything wrong with that, because "politics can be
a noble profession; it does, at its best, represent the battle
of competing values and ideals and ideologies" (Q 236).
THAT REFERENDUMS ARE DOMINATED BY
42. Some witnesses argued that referendums tend
to be dominated by elite groups, including politicians, the media,
and wealthy individuals, rather than "ordinary" citizens.
Dr Uwe Serdült, Centre for Research on Direct Democracy (c2d),
asserted that "the arsenal of direct democracy is an institutional
weapon for organized interests (political parties, interest groups,
employer's and employee's associations) and not for the people
as such" (p 137). Peter Browning warned that referendums
were rarely if ever free from influence by politicians and minority
groups (p 112). Dr Blick opined that referendums could give
extra influence to the media and commercial interests (p 110).
Steve Richards stated that "the British media is not necessarily
the most reliable institution to mediate on the complexities of
these issues ... I do not think a referendum on anything to do
with Europe, for example, will be fairly reported" (QQ 122, 147).
Michael Wills MP said that "the whole system can be hijacked
by populist and often very wealthy, very powerful people who can
afford to run these campaigns" (Q 226).
43. Several witnesses cited examples. Dr Stuart
Wilks-Heeg, Executive Director, Democratic Audit, highlighted
the Californian experience of citizens' initiatives (see Chapter
4), as an example of how referendums can "effectively be
hijacked by organised interests, particularly those which have
access to substantial financial resources (i.e. private corporations,
political parties and large campaign organisations)" (p 36).
Professor Butler referred to the first Irish referendum on the
Lisbon Treaty, where "a leading, flamboyant, rich man charged
in and moved opinion really quite substantially in the opinion
poll evidence and got a 'no' vote" (Q 16).
THAT REFERENDUMS CAN HAVE A DAMAGING
EFFECT ON MINORITY GROUPS
44. Professor Gallagher stated that referendums
are accused of allowing majorities to override the rights of minorities
(p 120). Caroline Morris also warned of "the danger
that minority rights may be overridden by populist sentiment"
THAT REFERENDUMS ARE A "CONSERVATIVE
45. Some witnesses viewed referendums less as
a "protective device" than as a "conservative device":
a block on progress. Dr Blick asserted that in the UK, referendums
were most often conceived of as "a means of placing a brake
on certain developments", such as European integration (p 110).
Steve Richards told us that, with referendums, "the status
quo can often seem more reassuring and less threatening than ...
change" (Q 151).
46. Peter Kellner pointed out that, in Switzerland,
women were not given the vote until 1971, because male voters
had rejected votes for women in a referendum in 1959 (Q 43).
Professor Williams stated that the Australian system, where a
majority of states, as well as a majority of voters, are required
to vote in favour of a change in order for a constitutional amendment
to be carried, has made change to the constitution extremely difficult,
if not impossible (p 150).
THAT REFERENDUMS DO NOT "SETTLE"
47. Some witnesses argued that referendums did
not "settle" the issue in question. Dr Wilks-Heeg pointed
out that the 1970s referendums in Scotland, Wales and Northern
Ireland had not brought to an end Irish, Scottish or Welsh nationalism,
but rather, the issues were revisited in referendums in the 1990s,
with further referendums planned in Scotland and Wales (p 37).
48. Peter Facey told us that "different
generations will take different decisions, in the same way that
we do not just have one election and then expect us all to live
with it for the next 50 or 60 years" (Q 45). Steve Richards
noted that the 1975 European Community referendum was only binding
on the Labour Party's position for four years before they wished
to change it (Q 125).
49. Dr Wilks-Heeg also pointed out that, in the
case of other EU states that have held referendums on EU treaties,
governments had been able to force repeat referendums to get the
result they wanted (p 37). The two Irish referendums on the
Lisbon Treaty are a case in point.
THAT REFERENDUMS FAIL TO DEAL WITH
50. Several witnesses argued that referendums
were not an appropriate means by which to take decisions on complex
issues. Dr Blick suggested that referendums could oversimplify
a complex issue into a simple "yes" or "no"
option (p 110). Professor Tierney stated that whereas "elected
representatives bring expertise and time to problems that ordinary
citizens don't have; they may be more detached and hence objective;
and they see the bigger picture of how different issues inter-relate
... a referendum addresses single issues one by one without proper
regard to this larger canvass" (p 48). Steve Richards
was concerned that in issues of complexity the arguments and technical
detail could get lost. He stated that Parliament was in a better
position to make such decisions (QQ 122, 138).
51. Dr O'Malley suggested that it is unrealistic
to expect ordinary citizens to be interested in or qualified to
have informed opinions on important constitutional issues (p 130).
Caroline Morris argued that the New Zealand experience of citizens'
demonstrated how referendums were not well suited to determining
complex questions of law or policy (p 127).
THAT REFERENDUMS TEND NOT TO BE
ABOUT THE ISSUE IN QUESTION
52. Some witnesses argued that referendum campaigns
could become dominated by peripheral issues. Dr O'Malley suggested
that when issues are too complex for voters to understand, other
issues are projected on to the actual questions. He cited the
Lisbon Treaty referendums in Ireland, where abortion and conscription
became major issues (p 129). Peter Browning asserted that
a referendum is often used to express a view on the governing
party rather than the issue in question (p 115). Lord Fraser
of Carmyllie said that referendums could be "a barometer
on the attractiveness of the political party at any given time".
He cited the 1997 referendum on Scottish devolution (when he was
Director of the "no" campaign), which, he argued, voters
saw as "a second opportunity, in less than six months, to
indicate why they thought the Tory Party was unpopular" (Q 101).
Daran Hill pointed out that the "yes" campaign for the
1997 Welsh devolution referendum (for which he acted as National
Co-ordinator), "had an aeroplane flying across South Wales
trailing a banner which said, 'Vote Yes, Vote Blair', which really
had nothing to do with the question being posed at all! It chimed
in with the political mood" (Q 101).
THAT VOTERS SHOW LITTLE DESIRE TO
PARTICIPATE IN REFERENDUMS
53. Other witnesses argued that there was little
public appetite for referendums to be used. Peter Browning stated
that while people may be prepared to vote every four or five years,
even then turnout is falling. On past evidence of referendum turnout
in the UK, he thought that it was doubtful whether voters would
turn out to vote in similar numbers as for elections. He stated
that low turnout would weaken the legitimacy of the result (p 112).
Professor Butler cited the rapid decline in turnout in Switzerland,
often viewed as the European exemplar of direct democracy (Q 6).
54. Professor Michael Marsh, Professor of Comparative
Political Behaviour, Trinity College Dublin, told us that one
of the difficulties with referendums is that voters "do not
necessarily want to know, they have much more important things
on their mind ... 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"
THAT REFERENDUMS ARE COSTLY
55. Evidence was received about the cost of referendums.
Professor Hazell pointed out that a national referendum costs
about the same as holding a General Election, about £120
million (Q 7).
56. Nigel Smith pointed out that referendums
cost money and take time (p 143), and Caroline Morris also
referred to "logistical difficulties" (p 127).
Unlock Democracy stated that referendums are "costly in terms
of money, time and political attention and the use of such resources
needs to be carefully considered" (p 25). Dr Helena
Catt, former New Zealand Electoral Commissioner and former Associate
Professor, Auckland University, told us that referendums are "very
expensive to do properly and if you are not going to spend the
money on it, it is not worth doing it" (Q 157).
THAT REFERENDUMS UNDERMINE REPRESENTATIVE
57. A number of witnesses thought that referendums
undermined, or had the potential to undermine, representative
democracy. Peter Kellner said that "one has to be very careful
about the relationship of referendums to parliamentary sovereignty
and to the principles of deliberative democracy that underpin
parliamentary sovereignty ... I would not couch the argument against
referendums in terms of some cataclysm for parliamentary democracy
but I do believe it weakens parliamentary democracy" (QQ 41, 54).
Steve Richards said that evidence suggested that referendums undermine
the parliamentary process (Q 123).
58. Peter Browning stated that the sovereignty
of Parliament "is certainly threatened by the use of referendums.
Referendums put the people before parliament. The sovereignty
of parliament becomes the sovereignty of the people ... Introducing
direct democracy into the political system ... challenges the
indirect, representative democracy that has been the essence of
UK democracy. If the people vote one way, their representatives
another, who should prevail, who is sovereign?" (pp 112-3).
59. Michael Wills MP told us that he was "really
alarmed sometimes when I hear some politicians speak as if measures
of direct democracy are panaceas for all the political challenges
that we face. They are not" (Q 266). Professor Marsh
told us that "there are all sorts of apparent strengths ...
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" (Q 157).
60. Dr Wilks-Heeg argued that the appeal of referendums
was understandable, but that "they must not be seen as a
magic bullet. More wide-ranging work would first be necessary
to reform the defects in our constitutional arrangements"
61. Nine national or regional referendums have
been held in the UK since 1973, although only one has been held
on a UK-wide basis. Referendums may become a part of the UK's
constitutional system. Some witnesses stated that once referendums
are in the democratic bloodstream, they are unlikely ever to be
removed (Q 62, pp 136, 144).
62. The balance of the evidence that we have
heard leads us to the conclusion that there are significant drawbacks
to the use of referendums. In particular, we regret the ad
hoc manner in which referendums have been used, often as a
tactical device, by the government of the day. Referendums may
become a part of the UK's political and constitutional practice.
Where possible, cross-party agreement should be sought as to the
circumstances in which it is appropriate for referendums to be
63. It is therefore necessary to consider when
it is appropriate for referendums to be held and what laws and
regulatory framework should then apply.
8 See paras 50-1. Back
See also Appendix 3. Back
See Appendix 3. Back
See Chapter 4 and Appendix 3. Back
See Appendix 3 for more details of the Swiss model. Back