1.
CONTENTS......................................................................................................................
2.
INTRODUCTION............................................................................................................
2.1.
Definitions................................................................................................................
3.
THE USE OF DIRECT DEMOCRACY IN BRITAIN SO
FAR...................................
3.1.
From Despised to Beloved: the Heyday
of an Unpopular Device............................
3.2.
Analyses : Not Yet a Constitutional
Safeguard........................................................
3.3.
The Binding Nature of the Referendum..................................................................
4.
IS DIRECT DEMOCRACY CONSTITUTIONAL?.....................................................
4.1.
Defining the Constitution.......................................................................................
4.2.
Direct Democracy and Parliamentary
Sovereignty...............................................
4.2.1.
The Traditional Approach...............................................................................
4.2.2.
Sovereignty Redefined...................................................................................
4.2.3.
A Reconciliation Proposed.............................................................................
4.3.
A New Constitutional Convention?........................................................................
4.4.
The Constitutionality of Direct
Democracy............................................................
5.
HOW APPROPRIATE IS DIRECT DEMOCRACY
FOR THE UK?.........................
5.1.
Desirability............................................................................................................
5.1.1.
The Case For..................................................................................................
5.1.2.
Dismissal of the Case Against........................................................................
5.2.
The Feasibility of Referendums..............................................................................
5.2.1.
Sovereign Subjects.........................................................................................
5.2.2.
Voting Systems and Majorities......................................................................
5.2.3.
The Timing of the Vote..................................................................................
5.2.4.
The Question to be Put...................................................................................
5.2.5.
Money Matters...............................................................................................
5.2.6.
The influence of Mass Media.........................................................................
5.2.7.
Political Influence...........................................................................................
5.3.
Does Direct Democracy Always Lead to
Good Decision-Making?.......................
5.4.
Direct Democracy in its Most Suitable
Form........................................................
5.4.1.
The Most Appropriate Form of
Referendum..................................................
5.4.2.
The Most Appropriate Form of CitizensÕ
Initiative........................................
6.
CONCLUSIONS............................................................................................................
7.
APPENDICES................................................................................................................
7.1.
Table of Major Referendums in the UK.................................................................
8.
BIBLIOGRAPHY..........................................................................................................
8.1.
Books.....................................................................................................................
8.2.
Articles...................................................................................................................
8.3.
Official Publications...............................................................................................
8.4.
Electronic Resources..............................................................................................
8.5.
Cases Referred to...................................................................................................
8.6.
Statutes Referred to................................................................................................
8.7.
Miscellaneous Resources.......................................................................................
9.
REFERENCES................................................................................................................
This paper is an
investigation into the changing nature of the referendum
in light of contemporary British constitutional reform.
Clement Atlee once said that ÒreferendumsÉare just not
BritishÓ,
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 Ð or
lack thereof Ð of referendums will be proffered. Bagehot wrote
that Òthe unresolved role of the people in the
constitution lies at the heart of arguments
aboutÉreferendums.Ó
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 Ôopinion pollsÕ. BagehotÕs
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 referendums,
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 Ð used wisely Ð 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 citizensÕ
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 governmentÕs 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. ÔReferendumsÕ
should be taken to mean Òa mechanism which allows voters
to make a choice between the alternative courses of
action on a particular issue.Ó Whilst
ÔplebisciteÕ means an ordinance of self-determination
with binding authority. A CitizensÕ
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 Kingdom,
nor is there a longstanding expectation amongst the
people of consultation regarding major constitutional
innovations. 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 seriously
and subsequently opposed a referendum on the issue in
the 1970 General Election. Prime
Minister Harold Wilson quickly rejected a referendum on
entry into the EEC: ÒThe constitutional position is that
whatever this House decides in this matter, or any other
matter, is the right decisionÓ. 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 Ð parliamentary sovereignty
- and therefore unconstitutional. 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, ÒWill
he keep to his determination not to repeat the
constitutional experiment of the Referendum?Ó To which
he replied ÒI certainly give the right Honourable
MemberÉthe assurance he seeks.Ó However
backbench pressure subsequently forced the government to
concede referendums on devolution to both Scotland and
Wales. Nevertheless
until the election of ÔNew LabourÕ in 1997 only four
referendums had been held.
However, an
unprecedented number of referendums have been held in
the last seven years. There have
been a further four major pre- and post-legislative
referendums
and no less than thirty local referendums on
directly-appointed mayors. Three further
referendums have been promised: a referendum on the
voting system for the House of Commons,
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 Ð the referendum
device was not criticised by opposition parties or from
within the government. 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
Smith
notes that this Òbetrays 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.Ó
Undoubtedly the
referenda held so far have set a precedent. The argument
that referenda are unconstitutional is now
unsustainable. 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,
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 power. 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 verdict
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
CallaghanÕs government by an alliance of the opposition
parties and Labour rebels
which was Òdefensive from the start.Ó
Referenda are allegedly employed by the current Labour
government as a Ôproblem solvingÕ mechanism Ð once a
question has been put few can argue with the result. It is
interesting to note the governmentÕs U-turn regarding a
referendum for the EC constitution. 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
Òthe tradition is spreading, as more and more countries
with no legal need to have referendums feel impelled to
hold them at crucial junctures.Ó
But there remains
no formula for initiating referendums, they do not arise
as a necessary mechanism of constitutional change
but are ÔgrantedÕ at the whim of the government. The
only constitutional principle involved is that
parliamentary sovereignty remains intact.
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 so. 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
unopposed.
Before the call
for Òa new regulatory framework for referendumsÓ
by the Committee on Standards in Public Life in 1996 and
the resulting PPERA 2000 the referendum process was
unregulated.
ÒNo coherent, consistent principles were applied
in their operation.Ó
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. This is how
it should be. They operate
for the reasons originally advocated by Dicey: to
provide a Ôcheck and balanceÕ 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.
This should
not come as a surprise. At the time
of the EC referendum, Edward Short, the leader of the
House of Commons remarked, Òthe Government will be bound
by it, but Parliament of course, cannot be bound by
itÉalthough one would not expect the honourable members
to go against the wishes of the people, they remain free
to do so.Ó
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 so. 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? Ð 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.
4. IS DIRECT
DEMOCRACY CONSTITUTIONAL?
When Dicey first
advocated the referendum in England,
his friend James Bryce asked him two questions that
remain pertinent to the constitutionality of direct
democracy in Great Britain today:
1.
ÒWhat is to be the
authority to decide when a bill should be referred [to
the people]Ó
2.
ÒHow can
Ôconstitutional changesÕ be defined in a country which
has no rigid constitutionÓ
Mads Qvortrup
suggests that the popularity of the referendum clouds
the question of constitutionality. 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.
And it is prima-facie impossible to decide Ð with any
reasonable level of accuracy Ð whether or not direct
democracy is constitutional when only one thing about
the constitution is certain: that itÕs borders are
elusive.
Britain is almost
unique insofar as it lacks a written constitution. The
Constitution Committee has adopted, as its working
definition of the constitution Òthe 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.Ó Blackstone
saw Òthat the king can do no wrongÓ as the central
pillar of the constitution. As the
cabinet and parliament replaced the King and his court,
Dicey noted that Òthere is no law which Parliament
cannot change. There
is
no fundamental or so-called constitutional lawÓ
and that there is not body of persons Òwhich can
pronounce invalid any enactment passed by the British
Parliament on the ground of such enactment being opposed
to the constitution.Ó 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 BryceÕs
questions remains unanswered. If the constitution is
indeed Ôwhatever the Queen in Parliament enactsÕ then
referendal precedent and the PPERA confirm the
referendumÕs constitutionality.
Parliamentary
sovereignty and direct democracy are traditionally
antagonistic. Historically the House of Commons would
refuse ÔsupplyÕ until grievances had been redressed: it
represented the people.
In passing the 1911 Parliament Act, Parliament
declared its own sovereignty
such that in law it will always be for parliament to
decide the law of the land. The
House of LordsÕ Ôreferendal theoryÕ
redefined the roles of both Houses and the electors. Unfortunately
the role of British subject is limited to periodically
approving preselected Members of Parliament who propose
policies and lead public affairs. In Ellen
Street Estates Ltd v. Minster of Health Maugham LJ said,
Òthe 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.Ó 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 Òin 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.Ó 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 Ð 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 Òovercome the
resistance of the second chamber by choosing new members
of that chamberÓ
as Òthe safety valve of the truest kind. It enables
the popular will Ð the will of which the executive is
the exponent, the will of which it is the appointee Ð to
carry out within the constitution desires and
conceptions which one branch of the constitution
dislikes and resists.Ó
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
Ôtrump cardÕ 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. Furthermore,
the safety valve which he talks of no longer exists and
the danger Ð as it then was Ð 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 Ð and there is no
valve net to prevent such an atrocity.
Interestingly, the
American constitution does not place sovereignty
anywhere Ð its writers feared that to do so would fuel
tyranny. Is such a
position desirable? If so the status quo should be
maintained. But
Wade
warns us that Òthe 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.Ó
Traditionally the
House of Commons drew its ÔparliamentaryÕ sovereignty
from the Royal Prerogative Ð 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, Òa conclusive power, in every point
somewhere.Ó The time has
come to recognise the essence of DiceyÕs theory in law:
that the constitution is in practice based on popular
sovereignty. ÒDicey
identified parliamentary sovereignty as the fundamental
norm of the British Constitution. But, he
distinguished between Parliament as the legal sovereign
and the People
as the political sovereign.Ó In advocating
the referendum Dicey promoted the legal recognition of
the political position.
The cabinet system
relies on parliamentary sovereignty and Òis 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.Ó That a
political doctrine is necessary demonstrates that the
constitution is lacking.
This is further evidence that the ÔlegalÕ seat of
sovereignty is misplaced.
Aristotle wrote
that Òthe majority ought to be sovereign, rather than
the best, where the best are fewÉ[a] feast to which all
contribute is better than one given at one manÕs
expense.Ó
If one accepts that policy in the UK is largely driven
by the majority, and also accepts DiceyÕs Ôobvious
conclusionÕ
that policy is driven by the sovereignÕs opinionÓ
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 Òcan only be
obtained through a specific mandateÓ Ð a referendum.
Even though Dicey was of the opinion that there is no
law in the state which parliament can not change,
he took his argument one step further when arguing that
in practice the people must consent to all
constitutional change in Britain.
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 Òdualist systemÓ 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. He claimed
that the existing British constitution already
recognised the people as the political sovereign. Bogdanor
believes that, as Dicey foresaw, the referendum has in
practice become Òan instrument of entrenchmentÓ since it
Òprevents the powers of Parliament from being
transferred without the approval of the peopleÓ
He is implying a shift in sovereignty. Whilst this may
have occurred in ÔrealÕ or ÔpracticalÕ terms, in law the
position has remained the same. Dicey wrote
that the referendum was Òthe 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 Ð that a law depends at
bottom for its enactment on the consent of the nation as
represented by the electors.Ó The next
logical step is the legal acceptance of this doctrine.
Constitutional
conventions are Òrules 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.Ó Vernon
Bogdanor reminds us that Òof the recent constitutional
reforms, most of them have been validated by referendumÓ
and in particular suggests that a convention may have
been established that Òthe powers of parliament should
not be transferred without popular consent.Ó 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
Òthe government will be bound by it, but Parliament, of
course, cannot be bound by it.Ó 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: Òwhen the
British people speak, everyone, including members of
Parliament, should tremble before their decisions and
thatÕs certainly the spirit with which I accept the
result of the referendumÓ. As so long as
the politicians consider referendums binding upon them,
a convention will exist.
It is suggested that Ð 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.
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 Ð 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 situations. 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 Act
Òthat 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.Ó However any
such poll still requires parliamentary ratification. Some
maintain, Òthere 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.Ó
They argue that the principle of parliamentary
sovereignty is so central to the British constitution,
that to move away from it slightly Ðlet alone abolish it
altogether Ð 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 Òthe UK doesnÕt have any citizens Ð
only subjects (of the crown). Until we move beyond the present
Ôconstitutional monarchyÕ Ð which isnÕt constitutional
at all and would probably be better called conventional
monarchy (i.e. everything is based on convention rather
than law) Ð you couldnÕt even contemplate the type of
citizen based system which exists in ÔpurerÕ
democracies.Ó
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. The
Commission on the Conduct of referendums claims that
since Òparliament has sovereign power, it must have the
power to call a referendumÓ. But this is an oversimplification
Ð it is submitted that the people are sovereign and
parliament is under
a
moral obligation to call a referendum. Under
BlackstoneÕs interpretation of the common law, the
referendum is permissible. Furthermore, referenda are
consistent with the social contract doctrine developed
by Locke, Kant and Rousseau.
Interestingly under the American Constitution a
referendum cannot be characterised as a delegation of
power. The
American constitution assumes that Òall power derives
from the peopleÓ
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) 1867. However,
whilst Parliament cannot ÔignoreÕ 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 Òin general, a referendum
will bind both Government and ParliamentÓ
and as long as it does so, it will have an effect on the
constitution. Under
any
analysis of what is ÔconstitutionalÕ a mechanism for
its change is inherently included within it.
Under these
analysis, both referendums and citizensÕ 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.
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, Òthe people of England think they
are free. They
are
gravely mistaken. They are free only during the
election of Members of Parliament.Ó However, the
Athenian model would be
expensive and impractical. Magleby concluded that Òpeople 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.Ó
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 Òthe assumption that ÔdirectÕ and
ÔrepresentativeÕ forms of
democracy are bound to be in conflict is (a)
likely to be self-fulfilling prophecy and (b) not
entirely correct either historically or prospectively.Ó
A case will be made for a move towards such a system and
the arguments against referendums will be dismissed.
Rodney Brazier
states that Òquestions 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.Ó Why this is
the case is examined below.
Democracy, of
necessity, dispenses Òa sort of equality to equals and
unequals alike.Ó Yet
Bagehot noticed that BritainÕs political arrangements
reflected not a participatory but a deferential
political culture. Richard Lung
explains partisan EuropeÕs mistake: Òit thinks its
elections are representative, when they are mainly
referential. Even
where
party lists are ÔopenÕÉthe voters are left with a
corporate veto for a party that is really only a
manifesto referendum vote.Ó
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. Furthermore
MinistersÕ extensive use of the wide range of
prerogative powers weakens ministerial accountability to
parliament. 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. ÒHe 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.Ó 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 LordsÕ power of veto. It was
further suggested that the referendum was a necessity
only when the absolute veto of the Lords was dying, but
not before. That time has
come Ð the House of LordsÕ 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,
but they have no power to block legislation. Any real
constitutional safeguards have been weathered away.
There is a
demonstrable need for a check on the power of the
government. DiceyÕs suspicion that constitutional
changes would be enacted without the peopleÕs consent
is more relevant as the constitutionÕs constraints on
the legislature weaken.
He wrote that checks were necessary Òin order to
guard the rights of the nation against the usurpation of
national authority by any party which happens to have a
parliamentary majority.Ó
A democracy is
Ògovernment of all the people, by all the people, for
all the people.Ó Referendums
strengthen representative democracy by allowing popular
participation without necessarily undermining the system
of representative government.
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 Ôlose touchÕ
with the preferences of the electorate.
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.Ó Referendums
isolate questions and focus minds.
From 50,000 people recently surveyed regarding the
European Constitutional Treaty, 70% were in favour of a
referendum before ratification.
Theoretically the
referendum device provides a mechanism of entrenchment
like no other. Currently
this entrenchment is political only Ð it has no legal
qualities whatsoever.
This is insufficient.
All previous
serious calls for referenda have allegedly Òfoundered on
the difficulty (and, in the view of some, the
undesirability) of distinguishing constitutional from
ordinary legislation without a written constitution.Ó Nevertheless
many referendums have taken place despite this
difficulty Ð 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
Òthe
mass of the English people are politically
contented as well as politically deferentialÓ
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,
ÒNo, only the best they were capable of receivingÓ
Ð 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. But whilst
the object of democracy
is the debate,
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
Òacceptance of the referendum is but the logical
consequence of accepting the democratic form of
governmentÓ Some
commentators go further:
The Economist claims that Òmost objections to
direct democracy are, when you look closely, objections
to democracy.Ó
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,
Òwhere 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.Ó
The reverse is also true. Referendum results may reflect
the popularity of the current government rather than the
nationÕs opinion on the question put to them.
But referendums are preferable Ð 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: CitizensÕ Initiatives have
targeted minority groups, for example, quarantining AIDS
victims
and repealing rights granted to homosexuals in several
American states. Joseph
Schumpeter gives examples of (near)-democracies which
have persecuted Jews and burnt witches. Representatives
are
seemingly more likely to protect minorities. Referendums
have
also been criticised because they have been used by
authoritarian rulers to justify and legitimise their
policies.
Qvortrup writes Òa balanced conclusion seems to be this:
the referendum is neither better nor worse than
representative democracy [at protecting minoritiesÕ
rights].Ó Both direct
and representative institutions of democracy can be used
to enact legislation that discriminates against
minorities. The
Referendum cannot be criticised on this ground Ð 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 Ôby 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 jobsÕ. Tristan
(now Lord) Garel-Jones dubbed it Òan abdication of
responsibility.Ó Referendums
do weaken the essential fabric of representative
government
by reducing its prestige and honour
and Òenabling
a
government to blame the voters if a policy that was
submitted to a referendum turns out to be mistaken or
unpopular.Ó
But given the benefits outlined above, this is small
price to pay. Furthermore
referendums
legitimate controversial policy decisions
and rarely upset party systems. Indeed Òthe
very concept of Ôrepresentative democracyÕ 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.Ó
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.
Ian Budge claims that ÒReferendums 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.Ó 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 Òallow for prudent compromiseÓ:
it is the bill, the whole bill, and nothing but the
bill. David
Magelby
asserts that Òdirect 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.Ó But the
nation would not necessarily be divided and polarised if
a referendum question was particularly complex or
controversial. Evidence
shows that the 1975 referendum gave rise to meaningful
intellectual discussion in the media and amongst the
people that transcended party lines. Moreover, a
referendum device offering the opportunity to measure
the intensity of opinion is available. In short, the
empirical evidence disproves claims that direct
democracy is inimical to a system of government which
facilitates compromises,
and clearly shows that the elite theoristsÕ
denunciations of referendums have been greatly
premature.
Referendums are
constitutional and desirable but will be inappropriate,
unfeasible and illegitimate unless Ôfair playÕ can be
ensured. The losing
side must feel that the fight was fairly conducted.
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. 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 issue
and may use the opportunity to punish the government
Òeven at the cost of defeating a policy which they
supported.Ó However
according to Butler and Ranney, Òreferendum
votersÉseem nevertheless to be better informed and more
sophisticated than voters in candidate elections.Ó Recent
evidence points to voters being more conscientious than
Dicey gave them credit for. VotersÕ
minds focus on the proposed change at General Elections,
where everyone realises the importance of the decision
to be made.
It is patronising to assume Ð after having
accepted popular sovereignty Ð 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 Ð the
decisions are theirs to take. Whilst decision-making may Ð and
in many cases should Ð 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 Ôrule of the PeopleÕ. Yet since the
People are rarely unanimous a better translation would
be rule by the majority.
The voting system and the majority used are of paramount
importance if a referendumÕs binding force is to be
universally accepted.
Currently Òa simple majority of those who cast
their votes carries a natural majority.Ó
The Labour government insists this is sufficient for
devolution. And whilst
Scottish advocates of devolution complained that they
were cheated by the 40% rule in 1979, the result was
accepted with little resentment.
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 direction
Ð 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 majority
would protect minority rights
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. Vernon
BogdanorÕs and the Commission on the Conduct of
ReferendumsÕ suggestion is to be preferred: Òif a
threshold is used, it should be a set percentage of the
votes cast and not a percentage of the eligible
electorateÓ
Òbecause of possible disputes in calculating the total
electorate after making deductions for transient voters
and those unable to vote at any given moment.Ó
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 Ð if someone
abstained, they were counted as a ÔnoÕ. ÒThere is no
reason to suppose the single transferable vote isnÕt
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.Ó Whilst the
setting of the majority and threshold is a political
decision, STV allows the most comprehensive survey of
public opinion.
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. 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,
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.
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. 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
Òthe 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.Ó
Questions should allow citizens the opportunity to
express the strength of their opinions. The
Commission on the Conduct of referendums recommended
that this should Òdepend on the nature of the issue (or
issues) to be put to the electorate.Ó The problem
with multi-choice referendums
is that they often produce no clear ÔwinnerÕ and
evidence from Sweden shows that multi-choice referendums
sometimes prolong the issue for much longer than a
simple yes-no vote.
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 quo
and allow for prudent compromises.
Dawn Oliver asks
who should be responsible for writing the question? Currently the
Electoral Commission gives opinions on the
intelligibility of questions
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. In any event,
questions Òshould be short and simple and should not be
open to either legal or political challenge after the
result is known.Ó Questions
should in fact be written by the commission to prevent
bias and safeguards against tendentious questions should
be implemented. In terms of
Britain voting to enter the euro, a simple ÔinÕ or ÔoutÕ
would serve the same purpose. Nonetheless, whilst the 1975
referendum shows how delicate the issue of wording can
be, it also shows Òhow little difference it can make in
the long run.Ó
Cronin suggests
that Òmoney is, other things being equal, the single
most important factor determining direct legislation
outcomesÓ
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 Ð quite literally Ð
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 Ôdisturbed, in particular,
by the evidence É that the referendum campaign in Wales
in 1997 was very one-sided, with the last-minute ÔNoÕ
organisation seriously under-funded and having to rely
on financial support essentially on a single wealthy
donor.Õ Thankfully
the PPERA
imposed restrictions on campaign funding, with the
government issuing Ôcore fundingÕ to the main
participants and limiting overall spending. That relief
is short-lived. The legislation is flawed.
In the Preface
to the White Paper ÔReferendum on United Kingdom
Membership of the European CommunityÕ
the then government was Òconvinced 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 speechÓ
The Committee on Standards in Public Life believed that
Òit 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
ÔteamsÕ in the form of political partiesÉBy contrast, a
referendum campaign is more like a free-for-all. Anyone can
participate. Many
do.Ó 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.
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? {Ed.: sentence should be clarified.}
Sam Younger, the
chairman of the Electional Commission warned in an
interview with the times that Òlegislation governing
campaign spending was ÔflawedÕ and Ôunworkable.ÕÓ He claims
that Òwealthy organisations on both sides could exploit
legal loopholes and hijack the campaign.Ó
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 OÕBrien
plans to challenge the government in the courts
regarding the funding rules. He claims that the PPERA
gives the government Òan unfair advantageÓ
since Òthe spending of the ÔyesÕ and ÔnoÕ campaigns is
limited by the PPERA for up to six months before a
referendum, but the governmentÕs own spending is not
limited until the last 28 days of a referendum
campaign.Ó 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,
Òcampaign spending can be judged the decisive factor in
only 23 Ð one eighth of the total.Ó
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. Political
awareness also has a moderating effect; Òit 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
ÔtheirÕ elite. It
also
reduces the likelihood that (late deciding)
partisans will vote contrary to their ideological
predispositions.Ó
Birch also cites
numerous studies in the United States to conclude the
mass media plays an insignificant part in changing
opinions during campaigns, Òpeople exposed themselves
mainly to communications with which they were
predisposed to agree andÉ they tended the remember the
content only of those items with which they had agreed.Ó It is when
the issues are new that Òpredispositions may give voters
little guidance, thus enabling campaigns to influence
different types of voters more evenly.Ó In all
situations, however a Ôbetter safe than sorryÕ attitude
is deemed preferable and such a position is reflected in
the PPERA. In any event,
the influence of mass media is not to be exaggerated,
studies suggest that while mass media may reinforce some
peopleÕs opinions, it rarely changes them.
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? If
governments decide to hold referendums on questions on
which they are themselves divided and formally suspend
collective responsibility,
these divisions will manifest themselves in public
speeches and campaigns. The
Committee on Standards in Public LifeÕs recommendation
is to be preferred: Òthe government of the day in future
referendums should, as a government, remain neutral and
should not distribute at public expense literature, even
purportedly ÔfactualÕ literature, setting out or
otherwise promoting its case.Ó
Referendums do not
provide final solutions. The
referendums on the EC and devolution have not finally
resolve the issues. 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. 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. 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. Whilst
Cronin claims that there is an abundance of evidence
that electors are restrained and arrive at the polls
well reasoned,
Butler notes that referendums can Òconfirm 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.Ó
Despite the above
criticisms, Zimmerman notes that Òevidence 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 groupsÓ. 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 rights.
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.
ÒAcross the
worldÓ, notes Ian Budge, Òthe nearest approach to direct
democracy É 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.Ó
Direct democracy
should undoubtedly embrace the electronic age, but whilst
the most extreme believers in direct democracy advocate
using Ònew electronic mass forums to by-pass
self-serving legislaturesÓ it is
submitted that the referendum is employed to complement
and occasionally correct representative government
rather than to replace it.
It is important to
recognise the limits on direct democracy. ÒThe
referendum cannotÓ, as Bogdanor has noted, Òdo much to
Ôunite a fundamentally divided society.Ó The
Referendum should not, for all its shortcomings, replace
representative democracy. 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 AckermanÕs dualist
constitutional system. Furthermore
the referendum should not be over-used so as to become
stale and disrespected.
If used sparingly, it Òcan be a tremendous
symbolic and significant political tool.Ó
MagelbyÕs
suggestion that Òsince Britain has an elastic
constitution, so the use of the referendum must be
elasticÓ
is to be rejected.
The ÔelasticÕ use of a referendum does not ensure
that the constitution is entrenched, nor is it
consistent with popular sovereignty. Referendums should
be triggered by citizensÕ initiatives or automatically
when significant constitutional change is proposed. 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
Ôconstitutional statutesÕ
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 BillÕs 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.
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 Ð there is simply no
concrete definition of what is or is not constitutional. Secondly, to
enact the Ôenabling actÕ Ð that is the legislation to
entrench the automatic process Ð 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 Commission
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 peopleÕs 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 citizensÕ 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 ÒunrealisticÓ. This is a
disappointing statement and a setback for direct
democracy campaigners in the UK.
Bogdanor
importantly notes, Òalthough 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.Ó 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 citizensÕ initiatives will be abused by well-funded
groups to advance their cause. 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 Ôhigh jackedÕ by rich
individuals or corporations has increased. 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.
The CitizensÕ
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) PeopleÕs referendum demand. (3) A
referendum must be held on the topic. The decision of
the referendum is legally binding. They claim
that this will create an Òideas greenhouseÓ 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 Òintegrates parliamentary and
citizensÕ democracy.
It brings citizens and MPs together to consider
and debate issues of real concern to the electorate. Negotiation
often occurs.Ó
6. CONCLUSIONS
The referendum is
more popular in the UK than ever before. ÒConsciously
or unconsciously, through the use of referendums Tony
Blair has completely changed the constitutional
landscape in this country.Ó It is
compatible with parliamentary sovereignty insofar as
parliament may refer questions to the people and there
is a strong case to suggest that a referendal convention
has arisen. But
this
is insufficient.
At law the
referendum lacks binding force, it remains an opinion
poll. Furthermore,
the
People have no right to be consulted when
constitutional amendments are made. There is no legal
requirement for referendums to be held. It has been
shown that if the people are accorded their proper
position in law Ð that of the sovereign Ð then the
referendum would become a key pillar of the
constitution. Simply
put,
embracing the referendum will result in a better
form of democracy.
Unfortunately the
legal recognition of popular sovereignty would require
the rejection of parliamentary sovereignty. This in
itself is legally impossible as parliament is unable to
bind itself to the future. In law the two are incompatible. A
self-denying ordinance would only be valid insofar as it
was not subjected to implied or explicit repeal. It would
appear that there is no solution.
However Wade
writes that ÒDicey had no doubt that the abdication of
sovereignty, whether total or partial, was consistent
with his conception of parliamentary sovereignty. He argued
that a sovereign power could divest itself of authority
in two ways only, by outing an end to its own existence
and leaving no means whereby a subsequent parliament
could be legally summoned or by transferring sovereign
power wholly or in part to a sovereign body.Ó
A written constitution recognising popular sovereignty,
approved by all electors at a referendum would have
indisputable legal force.
It need not even be a parliamentary self-denying
ordinance, nor an ÔordinaryÕ Bill requiring royal assent
as Dicey implies.
It should be considered a social contract between
the people. This
would
entrench popular sovereignty in law, giving
binding force to the referendum and maintain the House
of Commons as the primary law-making body. ÒIn the
absence of a codified constitution, a referendum cannot
ever be required as an instrument to ratify
legislation.Ó
A written
constitution would also solve a greater problem, namely:
what is the constitution?
We currently let the tail wag the dog Ð a
statuteÕs constitutional status is confirmed when it is
submitted to the people at a referendum, it is not
submitted because of its confirmed constitutional
status.
Unfortunately
there are no plans for a written constitution and a
revolution is highly unlikely. Therefore one must, for the time
being, advocate an intermediary solution and rely on the
consciences of not only MPs, but their party leaders
over whom we have diminishing control and in the fact
that the House of Commons is subject to regular General
Elections. A
standing commission should be established and a list of
constitutional statutes maintained as suggested above. Furthermore,
provisions should be made to enable the citizens to
propose legislation or referendums directly by means of
a CitizensÕ Initiative regardless of their strict legal
status.
Whilst there are
solutions to the practical problems with such
mechanisms, safeguards must be put in place to ensure
that the process is fair and leads to good
decision-making. The
PPERA
2000 clearly requires amendment.
|
NAME
|
DATE
|
QUESTION
|
RESULT
|
|
Northern Ireland Referendum
|
1973
|
On whether NI should remain part of
the UK
|
Yes
|
|
United Kingdom Referendum
|
1975
|
On whether the UK should remain
part of the European Community
|
YES
|
|
Scotland Referendum
|
1979
|
On whether there should be a
Scottish Parliament
|
NO
|
|
Wales Referendum
|
1979
|
On whether there should be a welsh
assembly
|
NO
|
|
Scotland Referendum
|
1997
|
Two questions:
1)
on
whether
there should be a Scottish Parliament
2)
on
whether
a Scottish Parliament should have tax
varying powers
|
YES
YES
|
|
Wales Referendum
|
1997
|
On whether there should be a Welsh
Assembly
|
YES
|
|
London Referendum
|
1998
|
On whether there should be a Mayor
of London and Greater London Authority
|
YES
|
|
Northern Ireland Referendum
|
1998
|
On the Good Friday Agreement
|
YES
|
|
North East referendum
|
2004
|
On elected regional assembly
|
NO
|
|
North West referendum
|
[Tabled]
|
On elected regional assembly
|
|
|
Yorkshire referendum
|
[Tabled]
|
On elected regional assembly
|
|
|
UK Referendum on the EU
constitution
|
Expected 2006
|
On the adoption/ratification of the
EU constitution
|
|
|
Euro Referendum
|
|
On the adoption of the Euro
|
|
|
Referendum on voting system for the
House of Commons
|
|
To chose a method of electing
members of parliament
|
|
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8.7.
Miscellaneous
Resources
- Parker, Theodore The American Idea,
speech at the New England Anti Slavery Convention,
Boston [May 29, 1850]#
- Bryce Papers, Bodlein Library, MS 4 to 84
- Salisbury Papers
- The Economist, December 1996
Clement Atlee when responding to whether a referendum
be held to extend BritainÕs wartime coalition until JapanÕs
surrender. As
per Ollie Stone-Lee, The UK and referendums (BBC
Online)
Athenian democracy was direct, all citizens were
expected to participate and the sovereign body would
consist of up to 6,000 members. When
decision-making took place in smaller groups, the
participants were drawn from lots rather than elected by
their peers Iaian McLean, The Concise Dictionary of
Politics (OUP,
Oxford, 1996) p131
See
Neville Lindsay at http://www.iniref.org/direct.or.indirect.html
: ÒThe ballot initiative process in California was
recently subverted to allow a tiny percentage of the
population to dictate to the rest of us what meat we are
allowed to eat, for heavens sake! 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.Ó