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REFERENDA: PLEBISCITES OR OPINION POLLS AN ANALYSIS OF THE USE, CONSTITUTIONALITY AND APPROPRIATENESS OF DIRECT DEMOCRACY IN THE BRITISH CONSTITUTION. 1 . C O N T E N T S
2 . I N T R O D U C T I O N This paper is an investigation into the changing nature of the referendum in light of contemporary British constitutional reform. Clement Atlee once said that “referendums…are just not British”1, but they are now indisputably an important part of the British decision-making process. The growth in the use and popularity of referenda in the intervening years will be examined. It will be shown that whilst the growing use of a previously alien device is to be commended this has regrettably occurred as a result of political expediency rather than the political and constitutional recognition of popular sovereignty. A solution to the long-standing debate about the constitutionality – or lack thereof – of referendums will be proffered. Bagehot wrote that “the unresolved role of the people in the constitution lies at the heart of arguments about…referendums.”2 If popular sovereignty is accepted, it follows that referendums have binding force; if the old principle of parliamentary sovereignty is retained, then referendums will remain mere ‘opinion polls’. Bagehot’s conundrum would quickly evaporate if the law recognised that in practice sovereignty rests with the people. A case for a continuing use of referenda in the United Kingdom will be made. It will be shown that all arguments against referenda can be dismissed with relative ease, without going so far as arguing that opponents of referendums are indeed opponents of democracy. Whilst more than 98% of states have used referendums3, it is unwise to assume that they are always appropriate. The feasibility of the referendum will be considered and it will be shown that despite its shortcomings the referendum – used wisely – is an appropriate, valuable and progressive tool particularly in light information technology advances and e-democracy. Voting at general and local elections aside, the referendum is the only contact point between the people, the legislature and the executive. The constitution currently precludes the citizens’ initiative and it has yet to find favour with politicians. Whether the initiative should be legitimised in Britain will be investigated. Of particular interest here is the government’s motivation for its U-turn with respect to a referendum on the European constitutional treaty. A thin line divides constitutional law and political science. This paper will, out of necessity, straddle the two and offer debate focussing on the referendum grounded in constitutional principles.
It is important to define important terms before proceeding. ‘Referendums’ should be taken to mean “a mechanism which allows voters to make a choice between the alternative courses of action on a particular issue.”4 Whilst ‘plebiscite’ means an ordinance of self-determination with binding authority.5 A Citizens’ Initiative is a process whereby a significant body of popular opinion can automatically trigger a referendum or debate in Parliament.
3 . THE USE OF DIRECT DEMOCRACY IN BRITAIN SO FAR
There is no tradition of referendums in the United Kingdom6, nor is there a longstanding expectation amongst the people of consultation regarding major constitutional innovations7. The Liberal Party first suggested that a referendum be employed in 1969 to solve the deep divisions across the country with regard to membership of the EEC. But, neither of the main parties took referendum proposals seriously8 and subsequently opposed a referendum on the issue in the 1970 General Election.9 Prime Minister Harold Wilson quickly rejected a referendum on entry into the EEC: “The constitutional position is that whatever this House decides in this matter, or any other matter, is the right decision”10. Yet despite this deep distrust and wide unpopularity, the referendum has enjoyed thirty golden years. There is no tradition of referendums in the United Kingdom11, nor is there a longstanding expectation amongst the people of consultation regarding major constitutional innovations12. The Liberal Party first suggested that a referendum be employed in 1969 to solve the deep divisions across the country with regard to membership of the EEC. But, neither of the main parties took referendum proposals seriously13 and subsequently opposed a referendum on the issue in the 1970 General Election.14 Prime Minister Harold Wilson quickly rejected a referendum on entry into the EEC: “The constitutional position is that whatever this House decides in this matter, or any other matter, is the right decision”15. Yet despite this deep distrust and wide unpopularity, the referendum has enjoyed thirty golden years Until the 1970s referendums were widely considered to be prima-facie antagonistic to the central principle of the British Constitution – parliamentary sovereignty16 - and therefore unconstitutional17. Even the 1975 referendum on the EC was seen by the then Labour government as a unique event. Four days after the referendum in 1975 Sir John Eden, a conservative backbencher, asked Prime Minister Harold Wilson, “Will he keep to his determination not to repeat the constitutional experiment of the Referendum?” To which he replied “I certainly give the right Honourable Member…the assurance he seeks.”18 However backbench pressure subsequently forced the government to concede referendums on devolution to both Scotland and Wales.19 Nevertheless until the election of ‘New Labour’ in 1997 only four referendums had been held.20 However, an unprecedented number of referendums have been held in the last seven years.21 There have been a further four major pre- and post-legislative referendums22 and no less than thirty local referendums on directly-appointed mayors.23 Three further referendums have been promised: a referendum on the voting system for the House of Commons,24 a referendum on the adoption of the Euro and a referendum on the European Constitutional Treaty. It is particularly interesting that the decisions to hold these referendums were uncontroversial – the referendum device was not criticised by opposition parties or from within the government25. This is of huge importance; less than 30 years ago the referendum was considered constitutionally impossible. In May 2002 John Prescott issued advice to local authorities on how to use the referendum to consult voters on council tax. And Nick Raynsford threatened to use local referendums as a means to cap council taxes across the country in September 2003. Nigel Smith26 notes that this “betrays another characteristic of referendums initiated by governments: they sometimes use them as instruments to further policy and not as a key to genuine choice and decision by the voters.”27 Undoubtedly the referenda held so far have set a precedent. The argument that referenda are unconstitutional is now unsustainable.28 Furthermore, the introduction of the Political Parties, Elections and Referendums Act 2000 (PPERA) is evidential of an intention to hold further referendums. It must be remembered, however, that whilst the referendum enjoys unprecedented popularity with the current government,29 it is still a discretional device. A simple change in government could result in the referendum falling from political grace.
Every referendum held to date has concerned a constitutional issue: the transfer of legislative power30. Whilst the referenda are indicative of the recognition of the constitutionality of the transfer of legislative power, did this constitutional status trigger the referendum or were the decisions to hold referendums motivated by other factors? It is submitted that referendums were and still are held on an ad-hoc basis. The referendum is an expedient device, appointed when a particular situation calls for a popular verdict31 and is not yet a true constitutional safeguard. This is demonstrated by the reasons behind each referendum. The twin devolution referendums of 1979 were forced upon Callaghan’s government by an alliance of the opposition parties and Labour rebels32 which was “defensive from the start.”33 Referenda are allegedly employed by the current Labour government as a ‘problem solving’ mechanism – once a question has been put few can argue with the result. It is interesting to note the government’s U-turn regarding a referendum for the EC constitution.34 If one assumes - as one might - that the decision was a political one, motivated by fears of a backlash from the voters, MPs and party members who were clamouring for a referendum, then what we see is the power of the People in effecting a referendum. This is a remarkable step forward. Worldwide “the tradition is spreading, as more and more countries with no legal need to have referendums feel impelled to hold them at crucial junctures.”35 But there remains no formula for initiating referendums, they do not arise as a necessary mechanism of constitutional change36 but are ‘granted’ at the whim of the government. The only constitutional principle involved is that parliamentary sovereignty remains intact.37 Indeed it is surprising that given the large majority commanded by the Prime Minister in the House of Commons, he is willing to risk his policies at referendum when there is nothing in law compelling him to do so38. Remarkably, most of those who advocate the use of referendums in the UK do so because they believe that they can defeat an innovation that would otherwise go through parliament unopposed39. Before the call for “a new regulatory framework for referendums”40 by the Committee on Standards in Public Life in 1996 and the resulting PPERA 2000 the referendum process was unregulated. “No coherent, consistent principles were applied in their operation.”41 The PPERA gave the responsibility for administering a referendum to the Electoral Commission, providing for referendums generally for the first time. If the increasing use of the referendum has fostered an environment where referendums are expected as a matter of course, then the PPERA has propped open the floodgates. In most states referendums are held as and when they are required by the constitution rather than for any ulterior or political purpose.42 This is how it should be43. They operate for the reasons originally advocated by Dicey: to provide a ‘check and balance’ on the power of the government.
When questions of the binding nature of referenda arise, the mindset of key individuals is crucial. In law referendums are nothing more than advisory.44 This should not come as a surprise.45 At the time of the EC referendum, Edward Short, the leader of the House of Commons remarked, “the Government will be bound by it, but Parliament of course, cannot be bound by it…although one would not expect the honourable members to go against the wishes of the people, they remain free to do so.” Nevertheless it can be concluded that whilst in law the referendum will be advisory, in practice the result will be binding - but only because the politicians consider it to be so46. The binding nature of the referendum can be further demonstrated by asking whether legislation approved by referendum could be repealed without legislative approval. For example could the Welsh Parliament be abolished without first consulting the Welsh People? – surely not. Despite the obviously binding nature of the referendum, some constitutional commentators insist on claiming that to date no binding referendums have been held, and that to do so would seriously undermine principles of governmental responsibility.47
4 . IS DIRECT DEMOCRACY CONSTITUTIONAL? When Dicey first advocated the referendum in England,48 his friend James Bryce asked him two questions that remain pertinent to the constitutionality of direct democracy in Great Britain today:
Mads Qvortrup suggests that the popularity of the referendum clouds the question of constitutionality.50 It is submitted, however, that the reverse is true. As referendums become increasingly popular, the importance of their constitutionality rises proportionately. Until the constitutionality of direct democracy is thoroughly examined, the status of referendums and initiatives lies in the balance.
It is difficult to theoretically analyse that which we cannot even identify.51 And it is prima-facie impossible to decide – with any reasonable level of accuracy – whether or not direct democracy is constitutional when only one thing about the constitution is certain: that it’s borders are elusive.52 Britain is almost unique insofar as it lacks a written constitution.53 The Constitution Committee has adopted, as its working definition of the constitution “the set of laws, rules and practices that create the basic institutions of the state, and its component and related parts, and stipulate the powers of those institutions and the relationships between the different institutions and the relationship between the different institutions and between those institutions and individuals.”54 Blackstone saw “that the king can do no wrong” as the central pillar of the constitution.55 As the cabinet and parliament replaced the King and his court, Dicey noted that “there is no law which Parliament cannot change. There is no fundamental or so-called constitutional law”56 and that there is not body of persons “which can pronounce invalid any enactment passed by the British Parliament on the ground of such enactment being opposed to the constitution.”57 Under any of these analyses the constitution can be whatever the Queen in Parliament enacts. It is submitted that whilst we are moving closer to an answer, the second of Bryce’s questions remains unanswered. If the constitution is indeed ‘whatever the Queen in Parliament enacts’ then referendal precedent and the PPERA confirm the referendum’s constitutionality.
4.2. Direct Democracy and Parliamentary Sovereignty58
Parliamentary sovereignty and direct democracy are traditionally antagonistic. Historically the House of Commons would refuse ‘supply’ until grievances had been redressed: it represented the people. In passing the 1911 Parliament Act, Parliament declared its own sovereignty59 such that in law it will always be for parliament to decide the law of the land60. The House of Lords’ ‘referendal theory’61 redefined the roles of both Houses and the electors.62 Unfortunately the role of British subject is limited to periodically approving preselected Members of Parliament who propose policies and lead public affairs.63 In Ellen Street Estates Ltd v. Minster of Health64 Maugham LJ said, “the legislature cannot according to our constitution bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal. If in a subsequent Act Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the legislature.”65 It follows that Parliament cannot bind itself to follow the result of a subsequent referendum. It would however be political suicide for the government of the day to contradict a referendum result. Charter 88 claims that “in major constitutional matters, the people ought to be consulted. It is not incompatible with Parliamentary sovereignty that there should also be popular sovereignty, where people have a direct say.”66 It is submitted that they are mistaken; there is no room for true direct democracy in a constitution based on parliamentary sovereignty. As long as parliamentary sovereignty is the central pillar of the constitution, a referendum decision will be, in the eyes of the constitution, no more than an expression of the popular opinion. At the heart of Direct Democracy is the opinion that sovereignty in the United Kingdom rests with the people, that the people should be able to express their wish and that wish be enacted into law. If a referendum result was to conflict with parliamentary opinion, the honourable members should be legally obliged to accept the decision of their electors. They are currently free to ignore popular opinion at the risk of provoking outrage and sacrificing their tenures. Bagehot wrote that ultimate authority in the United Kingdom rests with the House of Commons – suggesting that once appointed parliamentarians are free to decide as they like, with no reference to their electors. He described the power of the head of the executive to “overcome the resistance of the second camber by choosing new members of that chamber”67 as “the safety valve of the truest kind. It enables the popular will – the will of which the executive is the exponent, the will of which it is the appointee – to carry out within the constitution desires and conceptions which one branch of the constitution dislikes and resists.” This so-called safety valve allowed the Houses of Commons to ensure that its legislation was not unduly withheld, but did not protect against a tyrannical house or a house under the control of a tyrannical executive. Interestingly this ‘trump card’ was played to force the introduction of the Parliament Act. However it is submitted that Bagehot placed too much trust in the House of Commons.68 Furthermore, the safety valve which he talks of no longer exists and the danger – as it then was – of the House of Lords blocking legislation proposed by the elected house is no more. The danger now, is of the executive enacting legislation that is not supported by the people – and there is no valve net to prevent such an atrocity. Interestingly, the American constitution does not place sovereignty anywhere – its writers feared that to do so would fuel tyranny.69 Is such a position desirable? If so the status quo should be maintained. But Wade warns us that “the body which exercises sovereignty may well be more dangerous to stability that in the days when parliament commanded universal respect. It must not be forgotten that the inevitable consequence of the Supremacy of Parliament in the legislative field is that there can be no check upon the unscrupulous use of power by a Government which finds itself in command of a majority in the House of Commons.”70
Traditionally the House of Commons drew its ‘parliamentary’ sovereignty from the Royal Prerogative – this is an outdated and fundamentally unjust model. The crown, as a matter of convention, has no control over the House of Commons or the course of legislation in the UK. There must be a supreme authority, “a conclusive power, in every point somewhere.”71 The time has come to recognise the essence of Dicey’s theory in law: that the constitution is in practice based on popular sovereignty72. “Dicey identified parliamentary sovereignty as the fundamental norm of the British Constitution. But, he distinguished between Parliament as the legal sovereign and the People73 as the political sovereign.”74 In advocating the referendum Dicey promoted the legal recognition of the political position. The cabinet system relies on parliamentary sovereignty and “is saved from being an autocratic instrument by the knowledge that at intervals the electorate may alter the composition of the Commons and so place the supremacy of Parliament in other hands but it is the political supremacy rather than the legal doctrine which saves the democratic principle.”75 That a political doctrine is necessary demonstrates that the constitution is lacking. This is further evidence that the ‘legal’ seat of sovereignty is misplaced.
Aristotle wrote that “the majority ought to be sovereign, rather than the best, where the best are few…[a] feast to which all contribute is better than one given at one man’s expense.”76 If one accepts that policy in the UK is largely driven by the majority, and also accepts Dicey’s ‘obvious conclusion’77 that policy is driven by the sovereign’s opinion”78 then the sovereign and the people are indistinguishable. The electorate trusts its representatives to apply their minds to legislate, but they are not given the authority to delegate their power. Bogdanor suggests that such a power “can only be obtained through a specific mandate” – a referendum.79 Even though Dicey was of the opinion that there is no law in the state which parliament can not change,80 he took his argument one step further when arguing that in practice the people must consent to all constitutional change in Britain81. John Austin saw MPs as trustees for their electors in so far as they are able to impose their will on parliament in the long term. But there is no check on their power between elections. Dicey maintained that there was a “dualist system” in the United Kingdom: that in reality the consent of the people for constitutional change was sought whilst in law, such an idea was abhorrent.82 He claimed that the existing British constitution already recognised the people as the political sovereign.83 Bogdanor believes that, as Dicey foresaw, the referendum has in practice become “an instrument of entrenchment” since it “prevents the powers of Parliament from being transferred without the approval of the people” 84 He is implying a shift in sovereignty. Whilst this may have occurred in ‘real’ or ‘practical’ terms, in law the position has remained the same. Dicey wrote that the referendum was “the one available check on the recklessness of party leaders [and it would yield] formal acknowledgement of the doctrine which lies at the basis of English democracy – that a law depends at bottom for its enactment on the consent of the nation as represented by the electors.”85 The next logical step is the legal acceptance of this doctrine.
4.3. A New Constitutional Convention? Constitutional conventions are “rules for determining the mode in which the discretionary powers of the Crown (or of the Ministers as servants of the Crown) ought to be exercised.”86 Vernon Bogdanor reminds us that “of the recent constitutional reforms, most of them have been validated by referendum”87 and in particular suggests that a convention may have been established that “the powers of parliament should not be transferred without popular consent.”88 Whether such a convention exists will be examined below. By accepting the existence of such a convention we could circumvent all controversial questions of parliamentary sovereignty yet snugly incorporate referenda into the constitution. For this to be acceptable a supplementary convention would have to be accepted: that the decision is binding on the commons. There is evidence to support the existence of such a convention. At the time of the 1975 referendum on whether or not Britain should remain in the EC, Edward Short, the leader of the House of Commons declared that “the government will be bound by it, but Parliament, of course, cannot be bound by it.”89 It is unlikely that politicians will not accept the result of a referendum. Tony Benn, who had come under criticism from the Prime Minister during the 1975 campaign, said: “when the British people speak, everyone, including members of Parliament, should tremble before their decisions and that’s certainly the spirit with which I accept the result of the referendum”90. As so long as the politicians consider referendums binding upon them, a convention will exist. It is suggested that – the introduction of a written constitution and a recognition in law of the sovereignty of the people aside - the development of conventions for referendums is the only way to prevent political expediency from being the dominant factor in British referendums.91 An argument against the existence of a convention is that all but one of the referendums held to date (Northern Ireland in 1973) have been held by Labour governments – thus the referendal mechanism of constitutional change has not yet been practiced by all parties. However the Liberal Democrats (and the Liberals before them) favour the use of referendums for any constitutional change, and the Conservatives have advocate referendums in certain situations92. It is submitted that any future government would find it difficult to enact major constitutional change without referendal approval.
The closest the UK gets to entrenched direct democracy is a general commitment in the Northern Ireland Constitution Act93 “that Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll.”94 However any such poll still requires parliamentary ratification.95 Some maintain, “there is no legal or constitutional basis for holding a referendum in the UK other than that granted by an Act of Parliament. The doctrine of supremacy of Parliament gives all power to parliament (and in effect to the Commons) to decide whether or not to seek the advice of the electorate.”96 They argue that the principle of parliamentary sovereignty is so central to the British constitution, that to move away from it slightly –let alone abolish it altogether – would be unconstitutional. Such analyses conclude that the referendum can never be incorporated into the British constitution, let alone be seen as a fundamental machine of the constitutional reform process. Another quick argument against the constitutionality of direct democracy is that “the UK doesn’t have any citizens – only subjects (of the crown). Until we move beyond the present ‘constitutional monarchy’ – which isn’t constitutional at all and would probably be better called conventional monarchy (i.e. everything is based on convention rather than law) – you couldn’t even contemplate the type of citizen based system which exists in ‘purer’ democracies.”97 These arguments are fallacious. Direct democracy is constitutional on two different grounds. Firstly, if the real base of sovereignty is accepted then claims that direct democracy is constitutional are irrefutable. Secondly, there is a strong case for concluding that two constitutional conventions exist, one that a referendum must be held before any significant change is made to the constitution and two that the decision of that referendum be binding on the legislature. The argument that direct democracy is inconsistent with parliamentary sovereignty has lost its validity.98 The Commission on the Conduct of referendums claims that since “parliament has sovereign power, it must have the power to call a referendum”. But this is an oversimplification – it is submitted that the people are sovereign and parliament is under a moral obligation to call a referendum. Under Blackstone’s interpretation of the common law, the referendum is permissible. Furthermore, referenda are consistent with the social contract doctrine developed by Locke, Kant and Rousseau99. Interestingly under the American Constitution a referendum cannot be characterised as a delegation of power. The American constitution assumes that “all power derives from the people”100 Furthermore there is no reason why an ordinary Act of Parliament could not state a referendum to be binding or to be required before constitutional change. Exactly such a provision appears in the Australian Constitution Act (Queensland) 1867101. However, whilst Parliament cannot ‘ignore’ its own legislation it could impliedly repeal it in the ordinary manner regardless of the first act. What is important here is that the MPs will likely consider the provisions as effectively binding. Bogdanor claims that “in general, a 97 Colin Talbot, On-line discussion concerning the legal basis for national referendums in Britain www.iniref.org/natref1.html 98 Commission on the Conduct of Referendums, Report of the Commission on Referendums (Constitution Unit & Electoral Reform Society, 1996) referendum will bind both Government and Parliament”102 and as long as it does so, it will have an effect on the constitution. Under any analysis of what is ‘constitutional’ a mechanism for its change is inherently included within it. Under these analysis, both referendums and citizens’ initiatives should be considered constitutional. However there are no precedents for citizens initiatives in the UK and expression of popular opinion have been ignored more often than not.
5 . HOW APPROPRIATE IS DIRECT DEMOCRACY FOR THE UK ? 5.1. Desirability It is simply asked whether embracing direct democracy is more desirable than the current model of indirect democracy? Rousseau argued that indirect democracy is not democracy properly so called. He claimed, “the people of England think they are free. They are gravely mistaken. They are free only during the election of Members of Parliament.”103 However, the Athenian model104 would be expensive and impractical. Magleby concluded that “people who believe in undiluted representative democracy place the higher value on the virtues of stability, compromise, moderation, and access for all segments of the community, regardless of how small and seek institutional arrangements that insulate fundamental principles from short-term fluctuations in public opinion. People who believe in coming as close as possible to direct democracy place the highest value of the virtues of charge, participation, competition, conflict, and majority rule and seek institutional arrangements that maximise rapid and full responses to what particular majorities want.”105 It is submitted that the most appropriate solution is a system
of compromise entrenched in law that incorporates both direct and indirect
democracy, allowing a certain degree of flexibility yet entrenching minority
rights. With the problem of popular and parliamentary sovereignty solved, such a
middle ground can be found. Wallace-Macpherson finds that “the assumption that
‘direct’ and ‘representative’ forms of democracy are bound to be in
conflict is
5.1.1.The Case For Rodney Brazier states that “questions relating to the fundamental structures of the constitution are of a higher order of importance than those in other areas of national policy, and that in itself is a reason for resorting to unusual methods to resolve them.”107 Why this is the case is examined below. Democracy, of necessity, dispenses “a sort of equality to equals and unequals alike.”108 Yet Bagehot noticed that Britain’s political arrangements reflected not a participatory but a deferential political culture.109 Richard Lung explains partisan Europe’s mistake: “it thinks its elections are representative, when they are mainly referential. Even where party lists are ‘open’…the voters are left with a corporate veto for a party that is really only a manifesto referendum vote.”110 Our MPs have become representatives of and responsible to their parties rather than their electors. As the executive dominates the legislature, the principles of a free constitution are disappearing.111 Furthermore Ministers’ extensive use of the wide range of prerogative powers weakens ministerial accountability to parliament.112 This results in a tenuous link between the people from whom authority is derived and the people who exercise it. Direct democracy will address such problems. When studying the sovereignty of Parliament, Dicey showed that the certain alleged limitations on the power of Parliament did not exist. “He shows how the resolutions of one parliament cannot alter the law; that sovereignty as a matter of law does not lie in the electorate, whose right is restricted to choosing members of Parliament; nor yet in the law courts, where even if a decision is equivalent to judicial legislation it remains subject to repeal by Parliament.”113 The greater problem is not the lack of a constitutional check on the power of parliament, but of check on the power of the Prime Minister and the small number of ministers who comprise the cabinet and who use party whips to ensure compliance from the House. Nevertheless, the power of the House of Commons is not to be underestimated and comfort can be placed in the minds of the members. It was suggested at the time of the 1911 Parliament Act that the referendum could be employed to resolve conflicts between the two houses of parliament rather than a removal of the Lords’ power of veto114. It was further suggested that the referendum was a necessity only when the absolute veto of the Lords was dying, but not before.115 That time has come – the House of Lords’ veto is dead and buried. Indeed, the only remaining constitutional safeguards are the three committees of the House of Commons which scrutinise bills for their adherence to constitutional and legal values,116 but they have no power to block legislation117. Any real constitutional safeguards have been weathered away.118 There is a demonstrable need for a check on the power of the government. Dicey’s suspicion that constitutional changes would be enacted without the people’s consent119 is more relevant as the constitution’s constraints on the legislature weaken. He wrote that checks were necessary “in order to guard the rights of the nation against the usurpation of national authority by any party which happens to have a parliamentary majority.”120 A democracy is “government of all the people, by all the people, for all the people.”121 Referendums strengthen representative democracy by allowing popular participation without necessarily undermining the system of representative government.122 A stronger democracy is surely preferable. The referendum should also help the fight against the current rising tide of voter apathy and ensure that politicians do not ‘lose touch’123 with the preferences of the electorate.124 There is huge popular support for referendums. A 1968 poll found that 69% of respondents believed that Britain should adopt a referendum system and the 1995 MORI/Joseph Rowntree Reform Trust Survey showed that this belief has strengthened with 77% of respondents coming out in favour of the greater use of referendums.”125 Referendums isolate questions and focus minds.126 From 50,000 people recently surveyed regarding the European Constitutional Treaty, 70% were in favour of a referendum before ratification.127 Theoretically the referendum device provides a mechanism of entrenchment like no other.128 Currently this entrenchment is political only – it has no legal qualities whatsoever. This is insufficient.
5.1.2.Dismissal of the Case Against All previous serious calls for referenda have allegedly “foundered on the difficulty (and, in the view of some, the undesirability) of distinguishing constitutional from ordinary legislation without a written constitution.”129 Nevertheless many referendums have taken place despite this difficulty – this is no longer a valid objection to the referendum, it is a problem to be overcome and a solution is proffered below. Referendums are, however, victims to other difficulties. But all these difficulties can be minimised such that they longer challenge the referendum as a constitutional device and, more importantly, a constitutional safeguard. The case for referendums is considerably stronger than the case against. That “the mass of the English people are politically contented as well as politically deferential”130 is no reason to reject direct democracy, indeed it is a reason to advocate it. Solon was asked whether he had given the Athenians the best system of laws. He replied, “No, only the best they were capable of receiving”131 – we are now capable of receiving more than referential party politics. Bogdanor notes that whilst referendums can articulate a submerged consensus, they cannot create it.132 But whilst the object of democracy133 is the debate134, at some point crucial controversial and difficult decisions will have to be taken, and it is these situations in which the referendum shines. He notes that “acceptance of the referendum is but the logical consequence of accepting the democratic form of government”135 Some commentators go further: The Economist claims that “most objections to direct democracy are, when you look closely, objections to democracy.”136 We must remember, however, that the referendum is not perfect. Nothing is. The use of referendums as mechanisms of entrenchment is problematic insofar as the cost of protection from unwarranted innovation is a loss of flexibility. The benefits here far outweigh the costs. Bogdanor writes, “where it is known that an unpopular government is committed to a particular outcome, voters may well wish to punish the government even at the cost of defeating a policy which they support.”137 The reverse is also true. Referendum results may reflect the popularity of the current government rather than the nation’s opinion on the question put to them.138 But referendums are preferable – general elections should not be decided simply on one issue, but on a whole range of criteria. Some argue that direct democracy allows the majority to trample the rights of the minority: Citizens’ Initiatives have targeted minority groups, for example, quarantining AIDS victims139 and repealing rights granted to homosexuals in several American states.140 Joseph Schumpeter gives examples of (near)-democracies which have persecuted Jews and burnt witches.141 Representatives are seemingly more likely to protect minorities.142 Referendums have also been criticised because they have been used by authoritarian rulers to justify and legitimise their policies.143 Qvortrup writes “a balanced conclusion seems to be this: the referendum is neither better nor worse than representative democracy [at protecting minorities’ rights].” 144 Both direct and representative institutions of democracy can be used to enact legislation that discriminates against minorities.145 The Referendum cannot be criticised on this ground – it is the place of constitutional courts and Bills of Rights to protect vulnerable minorities who will always require special protection. To accept this criticism would be to accept that the people, as the sovereign, require protection from themselves. It has been suggested that ‘by providing a politically acceptable way in which elected representatives can evade difficult decisions by passing the buck to voters, referendums make it easy for representatives to shirk their responsibilities and evade the consequences of doing their jobs’146. Tristan (now Lord) Garel-Jones dubbed it “an abdication of responsibility.”147 Referendums do weaken the essential fabric of representative government148 by reducing its prestige and honour149 and “enabling a government to blame the voters if a policy that was submitted to a referendum turns out to be mistaken or unpopular.”150 But given the benefits outlined above, this is small price to pay. Furthermore referendums legitimate controversial policy decisions151 and rarely upset party systems.152 Indeed “the very concept of ‘representative democracy’ has been losing ground because the parties favour voting methods that reduce voters to party supporters. Rather than people, who might aspire to have wishes of their own to be represented.”153 Butler and Ranney note that ordinary citizens have neither the analytical skills nor the information to make wise decisions, whilst elected officials can weigh the intensity of opinions and reach compromises.154 Ian Budge claims that “Referendums sometimes stimulate a temporary influx of ill-informed and normally apathetic electors whose participation adds further unpredictability to the result and introduces greater inconsistency and incoherence to the process of decision making.”155 This analysis is pessimistic, voters are considerably better educated and reasoned at referendum polls than one might at first imagine; indeed it is environments with limited political participation that breed popular ignorance and political complacency. Referendums do not prima-facie “allow for prudent compromise”156: it is the bill, the whole bill, and nothing but the bill. David Magelby asserts that “direct legislation serves to intensify conflict and lead to a politics of confrontation. In contrast, indirect democracy is generally structured to facilitate compromise, moderation and a degree of access of all segments of the community.”157 But the nation would not necessarily be divided and polarised if a referendum question was particularly complex or controversial.158 Evidence shows that the 1975 referendum gave rise to meaningful intellectual discussion in the media and amongst the people that transcended party lines.159 Moreover, a referendum device offering the opportunity to measure the intensity of opinion is available.160 In short, the empirical evidence disproves claims that direct democracy is inimical to a system of government which facilitates compromises,161 and clearly shows that the elite theorists’ denunciations of referendums have been greatly premature.
5.2. The Feasibility of Referendums Referendums are constitutional and desirable but will be inappropriate, unfeasible and illegitimate unless ‘fair play’ can be ensured.162 The losing side must feel that the fight was fairly conducted.163 All democratic institutions should meet three criteria: equal participation, enlightened participation and minority protection. Until the referendum can meet this test, its authority will be questionable. Most of the problems examined below are practical, and unlike the metaphysical constitutional problems above, these can be solved by applying a little common sense.
Voters will almost undoubtedly take other matters into account.164 But the human mind is not infallible and MPs must suffer the same frailties. There is evidence that voters view referendums as a general election on one issue165 and may use the opportunity to punish the government “even at the cost of defeating a policy which they supported.”166 However according to Butler and Ranney, “referendum voters…seem nevertheless to be better informed and more sophisticated than voters in candidate elections.”167 Recent evidence points to voters being more conscientious than Dicey gave them credit for.168 Voters’ minds focus on the proposed change at General Elections,169 where everyone realises the importance of the decision to be made. It is patronising to assume – after having accepted popular sovereignty – that the People are not capable of making important decisions for themselves. In short, the arguments against entrusting important decisions to the voters are fallacious: the voters are sovereign – the decisions are theirs to take. Whilst decision-making may – and in many cases should – be delegated to a parliamentary body, that body must always remember the source of its authority and its responsibility to it.
Democracy is Greek for ‘rule of the People’.170 Yet since the People are rarely unanimous a better translation would be rule by the majority.171 The voting system and the majority used are of paramount importance if a referendum’s binding force is to be universally accepted. Currently “a simple majority of those who cast their votes carries a natural majority.”172 The Labour government insists this is sufficient for devolution.173 And whilst Scottish advocates of devolution complained that they were cheated by the 40% rule in 1979, the result was accepted with little resentment.174 Brazier asks, what would happen if the MPs show a clear majority in one direction and the electorate show a clear majority in the other direction175 – one must overrule the other but which is it to be? In this case, the decision of the People must carry more constitutional weight than the decision of their elected representatives, provided that the voting system demonstrates equal participation, enlightened participation and minority protection. A qualified or double majority176 would protect minority rights177 and entrench legislation, but would be inflexible; whilst a simple majority would facilitate flexibility at the cost of not entrenching rights and rendering the constitution vulnerable to a passing majority. Despite this fact no country seems to have used a double threshold.178 Vernon Bogdanor’s and the Commission on the Conduct of Referendums’ suggestion is to be preferred: “if a threshold is used, it should be a set percentage of the votes cast and not a percentage of the eligible electorate”179 “because of possible disputes in calculating the total electorate after making deductions for transient voters and those unable to vote at any given moment.”180 The voting system itself is also important, internationally majorities have taken various different forms. In Weimar Germany a yes vote from 50% of the population was essential for the referendum to pass – if someone abstained, they were counted as a ‘no’.181 “There is no reason to suppose the single transferable vote isn’t equally applicable to referendums, as to representations...STV gives ordinary voters the power of the initiative simply by entering a polling booth, without all the extra constitutional machinery and collective action required for formal initiatives.”182 Whilst the setting of the majority and threshold is a political decision, STV allows the most comprehensive survey of public opinion.183
When should the referendum be held? And who should decide? Referendums will not become well-respected constitutional safeguards while parliament still decides when and how they are held, as the device remains vulnerable to exploitation from the government.184 A date should be set by consensus between political parties or, preferably, by an independent body. It is submitted, however, that where possible referendums are held at the same time as general elections,185 this should allay fears of voter fatigue, prevent electors voting down a referendum proposal to punish the government and increase the turnout at the General Elections themselves.186 Where certainty or an extra degree of entrenchment is desirable, a two-stage process should be applied: the measure should be voted for in two referendums at different times.187 This system is particularly suited to situations where the voters have to indicate a preference at the first ballot. On the second paper the voters could be asked whether they would like to preserve the status quo or whether they support the option put forward in the first referendum. Furthermore, a referendum should not be rushed. Sufficient time should be allowed for the voters to educate themselves about the question at hand.
Where, as in Northern Ireland, the protagonists disagree about the definition of the issue, let alone the question, an attempt to hold a referendum may well prove futile. Cronin notes that “the greatest deficiency of the referendum is its tendency to force voters to chose between only two alternatives, they must ether approve or reject the measure referred.”188 Questions should allow citizens the opportunity to express the strength of their opinions.189 The Commission on the Conduct of referendums recommended that this should “depend on the nature of the issue (or issues) to be put to the electorate.”190 The problem with multi-choice referendums191 is that they often produce no clear ‘winner’ and evidence from Sweden shows that multi-choice referendums sometimes prolong the issue for much longer than a simple yes-no vote.192 A system of preference voting would produce clear results and allow supporters of reform to indicate whether they would be prepared to accept their second, or even third, choice reform options over the status quo193 and allow for prudent compromises.194 Dawn Oliver asks who should be responsible for writing the question?195 Currently the Electoral Commission gives opinions on the intelligibility of questions196 but does not write them. Magleby criticises some American states for placing detailed legislation in front of its voters and advocates questions worded in a general, simple and clear manner.197 In any event, questions “should be short and simple and should not be open to either legal or political challenge after the result is known.”198 Questions should in fact be written by the commission to prevent bias and safeguards against tendentious questions should be implemented.199 In terms of Britain voting to enter the euro, a simple ‘in’ or ‘out’ would serve the same purpose. Nonetheless, whilst the 1975 referendum shows how delicate the issue of wording can be, it also shows “how little difference it can make in the long run.”200
Cronin suggests that “money is, other things being equal, the single most important factor determining direct legislation outcomes”201 yet the government remains concerned that in limiting the spending on referendal campaigns, it is inhibiting freedom of speech. But, in a society where money – quite literally – speaks, should those who can afford the biggest media campaigns be allowed to influence voting? Analysis of past referendums is not comforting. The committee on standards in public life was ‘disturbed, in particular, by the evidence … that the referendum campaign in Wales in 1997 was very one-sided, with the last-minute ‘No’ organisation seriously under-funded and having to rely on financial support essentially on a single wealthy donor.’202 Thankfully the PPERA203 imposed restrictions on campaign funding, with the government issuing ‘core funding’ to the main participants and limiting overall spending. That relief is short-lived. The legislation is flawed. In the Preface to the White Paper ‘Referendum on United Kingdom Membership of the European Community’204 the then government was “convinced that any attempt to limit total expenditure by the two sides was impracticable, not least because it could apply only after legislation had received the Royal Assent, and that it would limit traditional freedom of speech”205 The Committee on Standards in Public Life believed that “it would be futile and possibly also wrong to impose such [spending] limits in connection with referendums. Ordinary election campaigns bear resemblance to sporting contests, in the sense that they are fought by competing ‘teams’ in the form of political parties…By contrast, a referendum campaign is more like a free-for-all. Anyone can participate. Many do.”206 Under these circumstances they claimed that it would be impracticable to try to control campaign spending. The government did believe that it was in the public interest for information about money spent by major individuals and organisations (and the source of this money) to be disclosed after the event.207 Why this is so is unclear, once the vote has been counted and the decision taken of what effect is this information if could not be used to prevent a rerun of the same situation in the event of another referendum on the same issue? Sam Younger, the chairman of the Electional Commission warned in an interview with the times that “legislation governing campaign spending was ‘flawed’ and ‘unworkable.’”208 He claims that “wealthy organisations on both sides could exploit legal loopholes and hijack the campaign.”209 One of the major problems being that the amount spent can only be analysed after the event, once the result has already been declared. Neil O’Brien210 plans to challenge the government in the courts regarding the funding rules. He claims that the PPERA gives the government “an unfair advantage”211 since “the spending of the ‘yes’ and ‘no’ campaigns is limited by the PPERA for up to 203 s.110 in particular which concerns assistance to protagonists in referendum campaigns six months before a referendum, but the government’s own spending is not limited until the last 28 days of a referendum campaign.”212 Furthermore one individual could create several different groups, each able to spend £500,000 and thus distort the whole campaign. It appears to be the case is that any legislation, however altruistic its aims, which attempts to limit the spending of referendum campaign groups will be rendered ineffective because such spending will be impossible to police. Comfort can however be taken from that fact that of the 189 state referendums in the USA between 1976 and 1984 for which spending data is available,213 “campaign spending can be judged the decisive factor in only 23 – one eighth of the total.”214
At election time broadcasters are obliged to be unbiased and neutral in their reporting and grant all parties the opportunity to air their views. It is submitted that political expedience reduces the amount voters are influenced by the media and the likelihood that (late deciding) participants will vote contrary to their ideological predispositions.215 Political awareness also has a moderating effect; “it decreases the likelihood that partisans will be pulled by a campaign towards decisions deviating from their predispositions and not in like with the campaigns of ‘their’ elite. It also reduces the likelihood that (late deciding) apartisans will vote contrary to their ideological predispositions.”216 Birch also cites numerous studies in the United States to conclude the mass media plays an insignificant part in changing opinions during campaigns, “people exposed themselves mainly to communications with which they were predisposed to agree and… they tended the remember the content only of those items with which they had agreed.”217 It is when the issues are new that “predispositions may give voters little guidance, thus enabling campaigns to influence different types of voters more evenly.”218 In all situations, however a ‘better safe than sorry’ attitude is deemed preferable and such a position is reflected in the PPERA219. In any event, the influence of mass media is not to be exaggerated, studies suggest that while mass media may reinforce some people’s opinions, it rarely changes them.220
Before General Elections politicians are expected to campaign along party lines. But what is expected of them before a referendum when the major parties may not be competing against each other, and may not even stand united?221 If governments decide to hold referendums on questions on which they are themselves divided and formally suspend collective responsibility222, these divisions will manifest themselves in public speeches and campaigns.223 The Committee on Standards in Public Life’s recommendation is to be preferred: “the government of the day in future referendums should, as a government, remain neutral and should not distribute at public expense literature, even purportedly ‘factual’ literature, setting out or otherwise promoting its case.”224
Referendums do not provide final solutions.225 The referendums on the EC and devolution have not finally resolve the issues.226 It has even been argued that referendums weaken representative government by discouraging energetic and innovative leaders from seeking election as legislators, and that the process of compromise and amendments to legislation that improves the quality of the law diminishes with the move towards popular sovereignty and direct democracy. Referendums have not always led to good decision-making. The Swiss vetoed legislation on national health insurance against their own best interests allegedly under the influence of advertising paid for by the private insurance companies.227 States such as Switzerland and California, which make extensive use of the referendum, do suffer difficulties. Their ability to persue coherent policies is weakened as political parties have a less important role; voters can get fatigued or find themselves unequipped to decide complicated issues and instead rely on their favourite politician or media source to guide them and referendums may be seen as a general election on the government generally.228 Furthermore referendums can be used by political parties as publicity devices. Nevertheless, voters in these states value the referendum and are reluctant to discard it.229 Whilst Cronin claims that there is an abundance of evidence that electors are restrained and arrive at the polls well reasoned,230 Butler notes that referendums can “confirm the worst fears of critics and opponents of direct democracy. Decisions would often be inconsistent with each other and ill considered. One alternative would be carried on a great wave of emotion at one point, only to be partially abrogated or contradicted in another measure months later.”231 Despite the above criticisms, Zimmerman notes that “evidence is lacking that the mandatory referendum in general has resulted in poor-quality decisions or that the protest referendum has been abused by special interest groups”232. No system of government is prefect and all are open to abuse, a body of elected members in a representative government could very easy pass legislation to persecute minorities, and trample on fundamental human rights233. Direct democracy will provide a better system of government, it will not solve all the problems with democracy.
Direct democracy has been proved to be constitutional, desirable and feasible for use in the United Kingdom. What form it should take is detailed below. “Across the world”, notes Ian Budge, “the nearest approach to direct democracy … is where legislative votes are supplemented by referendums or popular initiatives on particular issues, supported by a right of recall of legislation or of elected officials.”234 Direct democracy should undoubtedly embrace the electronic age,235 but whilst the most extreme believers in direct democracy advocate using “new electronic mass forums to by-pass self-serving legislatures”236 it is submitted that the referendum is employed to compliment and occasionally correct representative government rather than to replace it.237
It is important to recognise the limits on direct democracy. “The referendum cannot”, as Bogdanor has noted, “do much to ‘unite a fundamentally divided society.”238 The Referendum should not, for all its shortcomings, replace representative democracy.239 Referenda should not be used for all decision-making. Highly complex decisions (for example regarding economic policy) are out of reach for most electors. Others are so mundane that to refer them to the people would be futile. Indeed Rodney Brazier suggests that there is no case for referendums on any issue other than constitutional change. Other methods of consultation exist to ensure that interested parties can comment on legislation. This is consistent with Bruce Ackerman’s dualist constitutional system.240 Furthermore the referendum should not be over-used so as to become stale and disrespected. If used sparingly, it “can be a tremendous symbolic and significant political tool.”241 Magelby’s suggestion that “since Britain has an elastic constitution, so the use of the referendum must be elastic”242 is to be rejected. The ‘elastic’ use of a referendum does not ensure that the constitution is entrenched, nor is it consistent with popular sovereignty. Referendums should be triggered by citizens’ initiatives or automatically when significant constitutional change is proposed.243 In all events the bar should be set sufficiently high so that the prestige of both parliament and the device itself stays intact. This could be achieved in a number of different ways. A list of ‘constitutional statutes’244 could be maintained and the referendal mechanism triggered if a Bill read in parliament impliedly or explicitly repealed any part of them. In such a case, the Bill’s progress through the House would be paused until the people could ratify the change at a referendum. Whilst this would ensure the entrenchment of constitutional statues, several problems are envisaged. Firstly a constitutional statute is notoriously hard to define.245 Any Act already referred to the people would no doubt qualify, but this would not include, for example, the Human Rights Act. A better option would be to entrust a commission to draw up a list of constitutional statutes to date to ensure the inclusion of all relevant statutes. But this would not solve the problem – there is simply no concrete definition of what is or is not constitutional. Secondly, to enact the ‘enabling act’ – that is the legislation to entrench the automatic process – would require parliament to bind itself as to the future. This is currently constitutionally impossible and would require the legal recognition of the people as the legal sovereign as advocated earlier. An alternative would be to require the Constitutional Committee of the House of Lords or a new Constitutional Commission246 to monitor acts in their passage through parliament and recommend a referendum as appropriate. Whilst this solves the problems of the earlier approach it does not provide an entrenched automatic referendum mechanism as the decision to hold one is still discretional and parliament is not bound for the future. It is submitted that a broadly drafted written constitution that recognises the people’s sovereignty in law is the only watertight solution. As the one immutable, irrefutable and supreme source of law, a referendum would be required before any changes could be made to it. Either the reading in parliament of a Bill proposing a constitutional amendment or a citizens’ initiative would trigger such a referendum. There are, however, no plans for a written constitution in the UK. Furthermore any automatic trigger scheme seems unlikely. Nick Raynsford, the UK Local Government Minister suggested that a fixed formula by which to trigger referenda would be “unrealistic”247. This is a disappointing statement and a setback for direct democracy campaigners in the UK.
Bogdanor importantly notes, “although commonly seen as an instrument of popular sovereignty, the constitutional referendum gives the people only the power of veto. The electorate is confined to giving a verdict on a change that has already been endorsed.”248 Thus, limited use of the initiative should be also be employed, to allow the electorate to propose legislation or referendums directly. The risk is that the citizens’ initiatives will be abused by well-funded groups to advance their cause249. Indeed in California an industry has sprung up which is dedicated to finding funding for initiative campaigns. And ever since the Supreme Court struck down state legislation imposing caps on referendum spending the possibility that the referenda may be ‘high jacked’ by rich individuals or corporations has increased.250 It is important that there is no such room for abuse in any British initiative process, and that the initiative is not used spuriously. It is submitted that the quorum required before the initiative be declared valid be set very high so as to discourage all but the most pressing issues.251 The Citizens’ Initiative and referendum campaign proposes a three-step procedure: (1) An initiative which can lead to the debate of the proposal by parliament. If the proposal is rejected by parliament, and a required number of endorsements are collected from citizens then: (2) People’s referendum demand. A referendum must be held on the topic (3) The decision of the referendum is legally binding.252 They claim that this will create an “ideas greenhouse” where progressive policies will be cultivated by the people, yet the required number of endorsements should not be set so low as to render it frivolous. Furthermore the proposed system “integrates parliamentary and citizens’ democracy. It brings citizens and MPs together to consider and debate issues of real concern to the electorate. Negotiation often occurs.” With only a 28% turnout, an initiative to ban the sale of horse meat passed by 51%. That's less than 15% of the registered voters, or about 6% of the population, dictating to the rest of us what goes into our larders.”
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