Written evidence from Vernon Bogdanor,
Research Professor, King's College, London |
1. The European Union bill provides that a referendum
must be held before there can be any amendments to the Treaty
on the European Union or `significant' transfers of power from
Parliament to the European Union.
2. There are a number of precedents, amounting almost
to a convention, for the proposition that a referendum is required
for a significant transfer of the powers of parliament `downwards'
to devolved bodies. Logic would then seem to require that a referendum
also be needed for a transfer `upwards' to the European Union.
The rationale in both cases is the same, and was first stated
by Locke in his Second Treatise of Government, para. 141.
`The Legislative cannot transfer the power of making laws to any
other hands. For it being but a delegated power from the People,
they who have it cannot pass it to others'. Voters, it might
be said, entrust MPs as agents with legislative powers, but they
give them no authority to transfer those powers, to make radical
alterations in the machinery by which laws are to be made. Such
authority, it may be suggested, can be obtained only through a
specific mandate, that is, a referendum. The referendum, therefore,
could be argued to be in accordance with, rather than in opposition
to, the basic principles of liberal constitutionalism.
3. Nevertheless, a referendum is only needed for
`significant' changes. It is held that a referendum is needed
for the introduction of primary legislative powers in Wales, but
will not, I believe, be required for implementation of the Calman
Commission proposals on devolving revenue-raising powers to the
4. Although there is therefore a basic rationale
for the European Union bill, it seems to me that its provisions
are inconsistent with the declaratory clause insisting that Parliament
is sovereign. Indeed, the purpose of the bill is unclear to me.
A government will not provide for a referendum unless it wishes
to support a proposal for treaty amendment or transfer of powers.
If it is opposed to such a proposal, it can use its veto, since
all matters to be made subject to the referendum require unanimity.
The present government has indicated that it will not support
any amendment or transfer of powers in this parliament. Therefore,
the purpose of the bill must be to prevent a future government
from supporting such an amendment or transfer without a referendum.
The bill seeks, in other words, to bind a future government. That
seems to me inconsistent with the declaratory proposition that
Parliament is sovereign. If Lord Justice Laws is right in his
judgment in Thoburn v Sunderland City Council [2002}, that Parliament
`cannot stipulate against implied repeal', cited in the Explanatory
Notes to the bill in para. 108, then, presumably, a future government
could, if it wished, simply ignore a European Union Act, and accept
an amendment or transfer without a referendum. So the bill would
have no purpose. In fact, I do not think that Lord Justice Laws
was right. Therefore, the bill does have a purpose. But, if Lord
Justice Laws was, as I believe, wrong, then the bill purports
to do what clause 18 declares to be impossible, namely to bind
a successor Parliament.
5. Past referendums in Britain - the national referendum
in 1975 and the various devolution referendums - have, with one
exception, caused few problems. The exception was the Scottish
devolution referendum of 1979 when, although the `Yes' vote gained
a small majority, this failed to surmount the 40% hurdle required
6. Turnout in some referendums has, however, been
low. In the Welsh devolution referendum in 1997, just 50% voted.
In the referendum on a mayor and assembly for London in 1998,
just 34% voted, even though it had been suggested as part of the
justification for the reform that there was great popular pressure
for a London-wide assembly.
7. Because the referendum has worked well in the
past, there may be some danger of overlooking possible future
problems. The first such problem would be a narrow majority against
a proposal recommended by the government on a low turnout. Suppose,
for example, that a government recommended acceptance of a particular
treaty amendment or transfer of power, but, in a referendum, with
a turnout of 26%, 13.5% voted against it, with 12.5% voting for.
Ought the government to feel itself bound by such a result?
8. A second problem might be that of different outcomes
in different parts of what has become a multi-national kingdom.
Suppose, for example, that a particular proposal was endorsed
in the United Kingdom as a whole, and endorsed in England by a
small majority, but rejected by a large majority in Scotland.
Then a government might well consider again whether it ought to
be bound by the referendum.
9. The solution to these difficulties is to provide
that the referendums be explicitly advisory. Before the 1975 referendum
on the European Communities, Edward Short, Leader of the House
of Commons, told the House that `This referendum is wholly consistent
with parliamentary sovereignty. The Government will be bound by
its result, but Parliament, of course, cannot be bound'. He then
added, `Although one would not expect honourable members to go
against the wishes of the people, they will remain free to do
10. That was an accurate statement of the constitutional
position as it was then. Opinions differ as to whether it is possible
for Parliament to legislate for a binding referendum. It would,
however, be peculiar to do this in a bill which also declared
that Parliament is sovereign!
11. The European Union bill declares that Parliament
is sovereign. It then proposes to bind future parliaments through
a referendum lock. Was it not the Queen, in Lewis Carroll's Through
the Looking Glass, who declared that she had been able to
believe in six impossible things before breakfast?
26 House of Commons Debates,
vol. 888, col. 293, 11 March 1975. Back