Referendums in the United Kingdom - Constitution Committee Contents


CHAPTER 3: Referendums on constitutional issues

Part One: Should referendums be held on constitutional issues?

64.  Some witnesses stated that referendums should not be frequent. Lord Fraser did not think they should be "part and parcel of the everyday business of government" (Q 100). Caroline Morris stated that "frequent resort to referendums ... should be avoided" (p 129). Peter Facey said that referendums should not be "an everyday occurrence", but should only be used "soberly and cautiously" (Q 40). The Government stated that "referendums should only be used exceptionally within the UK's system of Parliamentary democracy" (p 95).

65.  Many were of the view that if referendums were used, they should be used in relation to constitutional issues, in particular those of a fundamental nature. Caroline Morris stated that "referendums should be held only on fundamental constitutional issues" because "any alteration to the democratic fundamentals of a state should have the endorsement of its people" (pp 127-9). Peter Browning asserted that "major constitutional issues ... would seem to be the most obvious subjects for referendums. If the structure and rules of politics are to be changed, then the people rather than the political players should decide on those changes" (p 113). Professor Tierney argued that referendums should only be held in relation to "fundamental constitutional change" and "the highest issues of constitutional principle", where "the issues are so fundamental that people should be able to reclaim their direct constitutional authority" (Q 74, p 49). Dr O'Malley suggested that "major constitutional changes ... should require the assent of the people ... this would give democratic weight and some permanence to such a decision" (p 130).

66.  On the other hand, Peter Kellner said that "'constitutional' does not mean the same as 'important'. I think, in terms of the wider public making that distinction, it is fairly difficult. It is not easy to explain to ordinary voters why they should have a vote on whether they have a mayor but not on whether to bail out the banks or on the deficit reduction plan" (Q 42).

67.  The Government argued that national referendums should be used "only where fundamental change in the constitution of the country is under consideration" (p 92). Michael Wills MP sought to clarify this, stating that "it is not just a question of the fundamental change", but also of "a fundamental change which has not been subject to a manifesto commitment". He also stated that "there are a lot of fundamental changes which, nevertheless, do not significantly rewire the constitution" (Q 218).

68.  How should a "constitutional issue" be defined? Professor Stuart Weir, Associate Director, Democratic Audit, told us that "it is an odd question in a way. It is a bit like saying to somebody, 'Will you describe a camel for me?' when we all know what a camel actually looks like but would find it perhaps difficult to give a very accurate description of the beast" (Q 65). Professor Gallagher admitted that this was not straightforward, in particular in the UK "given the absence of a single document entitled 'The Constitution'" (p 121).

69.  Dr Blick asserted that without a codified constitution, "it is impossible to establish with a sufficient degree of exactitude what are 'constitutional issues'; and a blanket requirement for referendums in this area cannot therefore be introduced" (p 112). Although Professor Saward acknowledged that defining "constitutional issues" was difficult, he thought that it was "realistic to aspire to a workable definition" (p 14).

70.  Professor Gallagher argued that the absence of a written constitution made it more likely that an assessment of whether or not an issue was "constitutional" would become a "political" judgment (p 121). Professor Butler told us that he "would quote Austen Chamberlain: ''Unconstitutional' and 'constitutional' are terms used in politics when the other fellow does something you don't like'!" (Q 3). Professor Bogdanor told us that "an elastic constitution, so it seems, implies an elastic use of the referendum. But this gives rise to a problem. For the referendum, in countries with a codified constitution, is intended to constrain the government of the day. In Britain, by contrast, if use of the referendum lies at the discretion of government, it can be used to augment the power of government rather than limiting it, by allowing a government to bring the people into play against Parliament ... The referendum could then become a tactical device, 'the Pontius Pilate' of British politics" (p 45).

71.  What is a "fundamental constitutional issue"? What differentiates a "fundamental constitutional issue" from a constitutional issue that is not fundamental?

72.  Michael Wills MP told us that the Government had tried unsuccessfully to identify "clear dividing lines so that everyone knows this is when you hold a referendum and this is when you do not ... Every time we tried to come up with a definition that would be sustainable and be consistent with representative democracy we failed ... Inevitably, however carefully you define this, however brilliantly 'lawyered' the definition is, there will be equally brilliant lawyers who will find very good reasons why that definition should not apply. You do not actually escape the question of judgment, however you do it ... In the end, I am afraid, we came up with what is inevitably going to be a subjective test" (QQ 211-2).

73.  Notwithstanding these difficulties, several witnesses attempted to define more precisely what is meant by a "fundamental constitutional issue". The following are some examples:

·  "Fundamental questions concerning sovereignty or a major constitutional settlement, especially if they concern steps that would be completely or virtually irreversible once enacted" (Professor Gallagher, p 121).

·  "Truly major issues of democratic principle—change that alters fundamentally the nature of the state" (Institute of Welsh Affairs, p 126).

·  "Topics ... which directly affect the constitutional make-up and powers of a state" (Caroline Morris, p 128).

·  "Changes to the sovereign powers of a state" (Caroline Morris, p 128).

·  "Those which concern the fundamental structure of politics and government" (Peter Browning, p 113).

·  "Those which implicate the sovereign relations between the people and government" (Navraj Singh Ghaleigh, p 139).

·  "Anything that changed the power balances within our democratic system ... anything that in any way redistributed power in a significant sense" (Baroness Kennedy of the Shaws, Q 64).

·  "Legislative proposals which provide for a radical alteration in the machinery by which the laws are made" (Professor Bogdanor, p 46).

·  Issues concerning "the very identity of a sovereign people ... when issues of the highest constitutional principle are at stake regarding the nature of the state or the constitution" (Professor Tierney, p 49, Q 74).

·  "Significant, encompassing and lasting change in the formal and general rules and rights which locate political authority" (Professor Saward, p 15).

·  "Anything that changes the dynamic and the relationship between the people and those who are elected" (Professor Graham Smith, Q 22).

·  "A significant change to the contract between the individual and the state" (Peter Facey, Q 41).

·  Issues that are "so fundamental ... to our constitutional arrangements ... that they merit consideration on their own" (Michael Wills MP, Q 210).

74.  Some witnesses sought to describe the kinds of issues that would fall under such a definition:

·  Membership of the European Union (QQ 45, 60, pp 95, 126, 128, 130).

·  Entry to the euro (Q 138, p 95).

·  Major changes to the devolution settlement or independent statehood of a sub-state nation or territory of the UK (QQ 41, 59, 157, 167, pp 15, 45, 49, 126, 128).

·  Change to the electoral system or to the number of MPs (QQ 65, 77, 157, 167, pp 15, 36, 49, 95, 128).

·  Changes to Parliament (including the abolition of the House of Lords) (Q 60, pp 49, 128).

·  A fully codified constitution (Q 213, pp 36, 49).

·  Fundamental changes to the constitutional status of the Sovereign (p 49).

A MATTER OF DEBATE?

75.  There was no unanimity amongst witnesses about whether certain questions should require a referendum:

Referendums relating to the European Union

76.  Navraj Singh Ghaleigh opined that European integration would be difficult to undertake "without powerful demands for a referendum" (p 140). Professor Tierney argued that a change in "the sovereign powers of the UK Parliament in relation to the EU or other supra-state institutions" should be subject to a referendum, and that it might be argued that, given the precedent of 1975, referendums on recent "expansionist" treaties should have been held (p 49).

77.  Professor Bogdanor stated that "there does seem a strong case in logic ... that there should be a referendum before major legislative powers are transferred upwards to the EU as well as downwards to devolved bodies". He suggested that such a doctrine would have necessitated referendums on the Single European Act and Maastricht, but not on the Amsterdam, Nice or Lisbon treaties, since they did not involve major transfers of powers (p 46). Michael Wills MP restated the Government's argument that a referendum on the Lisbon Treaty was not required because it was an amending treaty, although he conceded that this had been a controversial decision (QQ 237-8).

78.  The Institute of Welsh Affairs argued that "changing the internal arrangements of the European Union" was "of a lesser order of magnitude" (p 126). Peter Facey told us that there was an argument as to whether some European treaties were constitutionally significant enough to warrant a referendum (Q 42). Professor Butler said that the Conservative proposal for referendums on further EU treaties was "absolutely crazy" because many changes may be trivial and entirely in the UK's interests (Q 4).

79.  Dr Blick stated that "advocacy of EU referendums often rests on the idea that they are required to legitimate further sovereignty sharing by the UK. But the EU is by no means the only body within which the UK shares its sovereignty. Yet there are no demands for referendums in relation to UK membership of bodies such as NATO or the Council of Europe, despite the significant consequences of UK participation within them. Second, it might be asked, if the extension of sovereignty sharing requires a referendum, then should not its reduction as well? In other words, it could be argued that a policy such as the UK withdrawal from the EU Social Charter should be subject to a referendum, a stipulation not currently being called for in political debate" (pp 111-2).

Further devolution

80.  The Government of Wales Act 2006 requires that a referendum be held on the further devolution of powers to the Welsh Assembly. The Labour-Plaid Cymru coalition Welsh Assembly Government propose to hold a referendum before May 2011.

81.  The Institute of Welsh Affairs did not believe that the changes proposed were of sufficient significance to merit a referendum, since the Assembly "already has some powers of primary legislation", and the proposed change would only alter the way in which those powers were acquired and operated (pp 124-6). Daran Hill told us that he was "rather nervous about the way that the question the Welsh people will next face will be phrased. Essentially, what you would be asking people is, 'Do you want to move from Part 3 to Part 4 of the Government of Wales Act 2006?' How else might you phrase that? 'Do you want to move from an Assembly to a Parliament?' Is that really what is happening? 'Do you want the Welsh Assembly to have the same powers as the Scottish Parliament?' That is not on the table either. How you make that particular thing intelligible is something that is certainly exercising my mind" (Q 108).

82.  On the other hand, True Wales argued that "it is absolutely essential that a referendum should be held to determine how far the people of Wales wish to go in the direction of secession from the United Kingdom", because "the real people of Wales are locked out of the political process at every level of government, and this democratic deficit needs to be addressed" (p 149).

83.  The Institute of Welsh Affairs highlighted the lack of consistency on the part of the UK Government, in that a referendum is required in Wales, but is not proposed in Scotland in relation to the recommendations of the Calman Commission for significant alterations to the powers and functions of the Scottish Parliament, including new powers to raise taxes (pp 125-6).[13]

The Human Rights Act 1998

84.  Professor Bogdanor recognised an argument for using the referendum as a "weapon of retrenchment" of the Human Rights Act 1998 (p 46). Peter Facey told us that there should be a referendum on any proposal to repeal the Act, or to introduce a Bill of Rights "which would fundamentally entrench certain freedoms of individuals" (Q 60). Caroline Morris also thought that it was possible for the protection of rights such as those contained in the Human Rights Act to be subject to a referendum (p 129).

85.  Professor Tierney told us that he would "leave the Human Rights Act to one side. This was introduced by Parliament without any call for a referendum and could be modified or repealed by Parliament without necessarily affecting the UK's international obligations" (p 49). Professor Weir argued that there should be a reliance on the judicial system and the European Convention on Human Rights to adjudicate upon any changes that would affect human rights (Q 65).

THE UK'S EXPERIENCE: CONSTITUTIONAL PRECEDENTS OR POLITICAL INCONSISTENCY?

86.  To what extent has past experience of referendums in the UK created a precedent for the future?

87.  The Government have stated that "the precedents set by previous referendums provide a guide to the types of issue that ought to be considered for any referendum in the future" (p 92). Professor Hazell did not think "we can yet form an overarching or complete doctrine ... At best, I think we can venture a partial doctrine that referendums are required for devolution, for a constitutional change whereby the Westminster Parliament delegates legislative power to a subordinate legislative body ... [and] there is now a kind of reciprocal doctrine in relation to those devolved institutions" (Q 2). On the other hand, he told us, "there clearly has been no established doctrine so far" that a referendum is required "when Westminster delegates legislative power to a superior, supra-national body, like the European Parliament" (Q 4).

88.  Professor Bogdanor agreed that "conventions have grown up" that a referendum is required before "any significant devolution of powers away from Westminster" or "when a wholly novel constitutional arrangement is proposed", but not in relation to the European Union (pp 45-6, QQ 74, 78).

89.  In spite of such apparent precedents, witnesses detected a lack of consistency in the UK's experience of referendums. Professor Hazell noted that though referendums "have been held so far on constitutional matters ... we cannot yet say that a referendum is required for any major constitutional change", since referendums had not been held on the Human Rights Act 1998 or the 1999 reform of the House of Lords (Q 2). Dr Blick also cited the Human Rights Act 1998, as well as the Freedom of Information Act 2000 and the establishment of the Supreme Court, as examples of major constitutional issues that had not been subject to a referendum (p 111). Professor Tierney noted an "irregular" pattern whereby referendums were required for Elected Regional Assemblies, but not for the Lisbon Treaty (p 49).

90.  We asked Michael Wills MP about this apparent inconsistency, in particular in relation to the Government's proposals to hold a referendum on the electoral system for the House of Commons but not on any changes to the composition of the House of Lords. When asked if there was a case for a referendum on House of Lords reform, he told us that "changes to the way it is composed do not necessarily require a referendum ... If we were to look fundamentally at changing the powers of the House of Lords ... then I think that we would almost certainly require a referendum on that" (Q 213). Although he conceded that a significant change in the House's composition would mark "a fundamental constitutional change it is a change that will have been pre-figured in a manifesto commitment, in fact in several manifesto commitments. It will be, we think, probably an all party commitment in all main parties' manifestos. The people of this country will have had decades to consider this change over time, it is not a change that has suddenly emerged." For this reason, he asserted, a referendum was not required (Q 220).

91.  On the other hand, the Government have judged that a change to the way that the House of Commons is composed should be subject to a referendum, because:

    "There is something, we felt, slightly distasteful ... about MPs deciding for themselves without any validation from the public as a whole how they should be constituted. It is the self-legislating aspect of this particularly because it relates to the House of Commons who are the primary chamber, that is the reason for that. People may say that exactly the same criteria should apply in these cases but in this case it is a longstanding manifesto commitment for whatever reason, good or bad, that we should have a referendum on any change to the voting system, and the principled reason behind it is that MPs should not decide themselves alone how they should be constituted ... The House of Lords is in a different position" (Q 222).

CONCLUSION

92.  This Committee's first report set out what were seen then as "the five basic tenets of the United Kingdom Constitution":

·  Sovereignty of the Crown in Parliament;

·  The Rule of Law, encompassing the rights of the individual;

·  The Union State;

·  Representative Government;

·  Membership of the Commonwealth, the European Union, and other international organisations.[14]

93.  Although these tenets describe a "constitutional issue", they do not define what constitutes a "fundamental constitutional issue". Some issues can be judged as "fundamental", and others not so. There is also a grey area, where it is a matter of judgment as to the constitutional significance of a given issue. The UK's experience of referendums does not offer any consistency in terms of judging what constitutes a "fundamental constitutional issue".

94.  Notwithstanding our view that there are significant drawbacks to the use of referendums, we acknowledge arguments that, if referendums are to be used, they are most appropriately used in relation to fundamental constitutional issues. We do not believe that it is possible to provide a precise definition of what constitutes a "fundamental constitutional issue". Nonetheless, we would consider to fall within this definition any proposals:

·  To abolish the Monarchy;

·  To leave the European Union;

·  For any of the nations of the UK to secede from the Union;

·  To abolish either House of Parliament;

·  To change the electoral system for the House of Commons;

·  To adopt a written constitution; and

·  To change the UK's system of currency.

This is not a definitive list of fundamental constitutional issues, nor is it intended to be.

Part Two: Mechanisms for triggering a constitutional referendum

95.  In the light of the difficulties of defining a "fundamental constitutional issue", the Government have argued that "the decision as to whether or not a referendum should be held should be made on a case-by-case basis. We do not believe that an objective test could be established as to the circumstances in which a referendum should and should not be held" (p 94).

96.  However the decision as to the use and timing of referendums remains almost entirely in the hands of the government of the day. In particular, the inconsistency of its use in the UK lends weight to the arguments set out in Chapter 2 that the referendum remains, at heart, a tactical device rather than a matter of high constitutional principle. As Dr O'Malley surmised, "the question arises, who, in the UK could decide what is a major constitutional issue? If it were the government, this would make a mockery of the constitution" (p 130).

97.  Professor Saward told us that the "master constitutional issue" was whether "to take this legally out of the hands of political parties or government managers and put it on a more consistent and more independent basis" (Q 22).

98.  Witnesses proposed various "triggers" by which a decision could be made whether or not a referendum should be held.

A WRITTEN CONSTITUTION?

99.  As we have seen, some witnesses argued that it was particularly difficult to define a "constitutional issue" in the UK in the absence of a written constitution.[15]

100.  Some advocated the adoption of a written constitution. Dr Blick asserted that "to dabble with the idea of requiring referendums for 'constitutional issues' without first clearly codifying the UK constitution is to approach the issue from the wrong end. A codified constitution must be established first. Within such an arrangement referendums could be provided with a clearly delineated role, integrating them within an overarching system of representative democracy" (p 112).

101.  Others were less convinced. Professor Butler argued that "if we had got to a written constitution, we might get ourselves entangled, as the Irish got entangled" on the Lisbon Treaty (Q 5). Although Peter Kellner concluded that "if you are going to go down the route of saying we should have referendums on constitutional issues, you need a constitution", he nonetheless thought that "the fluid constitution we have is actually better than a written constitution" (Q 44).

102.  A written constitution could provide a more precise definition of a "constitutional issue", and define which issues required a referendum before any change. The arguments for and against introducing a written constitution are outwith the scope of this inquiry.

A STATUTORY SAFEGUARD?

103.  Some witnesses argued in favour of a statutory safeguard, either through a stand-alone Referendums Act which would define the issues for which a referendum would be required, through the entrenchment of existing legislation to prevent its repeal without recourse to a referendum, or through future legislation that would define when referendums were required.

104.  The Government's evidence pointed out that there were already limited statutory provisions setting out when referendums must be held, such as before Northern Ireland could cease to be a part of the United Kingdom and form part of a united Ireland,[16] before an Elected Regional Assembly could be established,[17] or before full legislative competence could be transferred to the National Assembly for Wales.[18] The Government stressed that "these do not provide an objective test for determining when a referendum on other issues should be held, but provide a further guide to the types of issue that might be subject to a referendum in the future" (p 95).

105.  Unlock Democracy argued that Parliament could either "pass a Referendums Act which lists all the Acts of Parliament or clauses of acts that cannot be repealed without a referendum", or it could "amend the key acts themselves so that they cannot be repealed or amended without a referendum. The first option would be clearer and easier for the public to understand" and "would in effect move you towards a written constitution" (p 20, Q 55).

106.  Professor Bogdanor suggested that "one possible way of entrenching legislation" would be to ensure that any future amendment or repeal of a particular statute, such as those providing for the devolved bodies in Scotland, Wales and Northern Ireland, should require a referendum (p 46).

107.  Professor Gallagher also suggested that a legal framework could be devised that would give strong guidelines as to the issues on which a referendum would be ruled out, possible, or mandatory. He stated that though a government with a parliamentary majority could interpret this legislation to their own advantage, "the risk of losing support through being seen to violate the 'spirit' of the rules might constrain governments to some extent" (p 121). The Institute of Welsh Affairs advocated the amendment of the Political Parties, Elections and Referendums Act 2000 (PPERA) to include a clause that "any referendum on a constitutional change should apply only to truly major issues of democratic principle—change that alters fundamentally the nature of the state" (p 126).

108.  Some witnesses emphasised the difficulties with such a statutory approach. Professor Tierney thought that interpretation could be difficult in the absence of a written constitution, for instance in judging which EU constitutional reforms would need referendums and which would not (p 50). Peter Kellner told us that clauses that sought to require a referendum on a particular policy issue would be "an open invitation to any government with a majority to try and entrench a partisan policy by saying any subsequent government cannot simply put it in their manifesto that they going to change it; they would have to go back to the people" (Q 56).

109.  There was evidence on whether it was possible for one Parliament to bind another. Professor Bogdanor stated that "upon one interpretation of parliamentary sovereignty, this could not be done, since Parliament could simply ignore the referendum requirement and abolish the devolved bodies without any recourse to the people. The decision of one Parliament cannot, it might be argued, bind a later Parliament. Nothing can prevent later legislation from repealing earlier legislation. But it could be argued that the referendum requirement could be made a condition of a bill ... The referendum requirement would then redefine what was to count as valid legislation on a particular topic ... There seems no reason in principle why such a requirement should not be possible" (p 46). Dr Blick noted that "though in theory a future Parliament could repeal such a statute, there might be a strong political imperative not to do so" (p 111).

110.  Michael Wills MP told us that if the referendum were "firmly to become embedded in our constitutional arrangements then the case for some sort of legislative framework would be very strong, but it is not [firmly embedded] and nor should it be, in my view" (Q 214).

111.  It is possible to set out in legislation specific issues which should be subject to a referendum, as has been done in the past. Although one Parliament cannot bind another, Parliament might not lightly repeal such legislation. But, since it is impossible precisely to define what constitutes a "fundamental constitutional issue", it follows that it is impossible to set out in legislation an all-encompassing list of such issues that should be subject to a referendum.

A PARLIAMENTARY MECHANISM?

112.  The Government asserted that "it is for Parliament to determine whether or not a referendum on any particular subject should be held" (p 94).

113.  Various parliamentary trigger mechanisms were suggested. Some advocated the use of parliamentary "supermajorities". Professor Gallagher suggested that "the Danish rule that delegation of sovereignty to international authorities requires a referendum unless there is a five-sixths majority in Parliament, or some variant of this rule, would ... be worth considering" (p 121). Peter Facey agreed (Q 42).

114.  Peter Browning argued that a free vote in the House of Commons "is probably the best way of deciding the topics on which referendums should be held" (p 114).

115.  Nigel Smith suggested that "the Speaker in the Commons could certify that a bill or treaty does not contain constitutional issues as defined in a prior set of tests". He also argued that the House of Lords "should be given the power to call an optional referendum on a contentious bill" (p 144).

116.  Professor Saward suggested that this Committee could have a role in defining a set of issues that "are widely accepted as constitutional issues ... under an appropriate guiding principle. A pragmatically illustrated definition from the Committee, along these lines, may begin to generate consensus ... In this way, the Committee may help to prompt clear, focused debate" (p 15).

117.  The Committee's first report concluded that "we do not wish, nor indeed would we have the time, to become some sort of constitutional sieve, sifting through the fine detail of every constitutional issue whatever its importance. It is for this reason that we will be focusing on significant constitutional issues ... In order to be significant, a constitutional issue needs to be one that is a principal part of the constitutional framework and one that raises an important question of principle."[19] We reaffirm this statement.

118.  Parliament should judge what issues will be the subject of referendums. In its first report, this Committee stated that it would "focus on issues of constitutional significance" determined by whether an issue raises "an important question of principle about a principal part of the constitution".[20] We believe that this provides a useful test, first, of whether an issue is of fundamental constitutional significance, and second, of whether a referendum is therefore appropriate.


13   See Scotland Office press release, 25 February 2010, http://www.scotlandoffice.gov.uk/scotlandoffice/13525.html. Back

14   1st Report (2001-02), Reviewing the Constitution: Terms of Reference and Method of Working (HL Paper 11), para 21. Back

15   See paras 68-70 above. Back

16   Northern Ireland Act 1998. Back

17   Regional Assemblies (Preparation) Act 2003. Back

18   Government of Wales Act 2006. Back

19   Reviewing the Constitution, op. cit., para 22. Back

20   ibid., para 27. Back


 
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