Referendums in the United Kingdom - Constitution Committee Contents


CHAPTER 2: Referendums—Arguments 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 PROCESS

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 (p 94).

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" (Q 229).

THAT REFERENDUMS CAN BE A "WEAPON OF ENTRENCHMENT"

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" AN ISSUE

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 DEVICE"

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 (Q 5).

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 ENGAGEMENT

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 JUDGMENTS

29.  In response to those who queried whether referendums were a suitable vehicle by which to determine policy on complex issues,[8] 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 VOTERS

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 (Q 90).

THAT REFERENDUMS COMPLEMENT REPRESENTATIVE DEMOCRACY

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).[9]

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 referendums

36.  Witnesses recited a number of drawbacks to the use of referendums:

THAT REFERENDUMS ARE A TACTICAL DEVICE

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 referendums—the 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" (Q 129).

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 ELITE GROUPS

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" (p 127).

THAT REFERENDUMS ARE A "CONSERVATIVE DEVICE"

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).[10]

THAT REFERENDUMS DO NOT "SETTLE" AN ISSUE

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 COMPLEX ISSUES

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' initiated referendums[11] 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).[12]

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" (Q 174).

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 DEMOCRACY

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).

Conclusion

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" (p 39).

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 used.

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

9   See also Appendix 3. Back

10   See Appendix 3. Back

11   See Chapter 4 and Appendix 3. Back

12   See Appendix 3 for more details of the Swiss model. Back


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2010