The EU Bill: Restrictions on Treaties and Decisions relating to the EU - European Scrutiny Committee Contents

4  Implementation of the referendum lock

Should referendums be limited to issues of constitutional significance?

62. Since 1973, nine referendums have been held in the UK, one of which has been nationwide.[69] A further nationwide referendum on the alternative vote system for the election of Members of Parliament is planned for this year. By contrast, this Bill introduces 56 Treaty provisions[70] which, if invoked, would trigger a referendum. The majority of them does not concern major issues of national policy, such as changing the currency of the UK, but a change in the voting system in the Council from unanimity to QMV.

63. The evidence given by Professor Hix was that referendums were better suited to major constitutional questions rather than procedural issues, and that this was key to their effectiveness:

"Referendums are a legitimate tool, but often they are not regarded as legitimate unless they are on major constitutional questions. In a democracy we believe that ultimately sovereignty resides with the people, so it is legitimate that referendums should be used for major constitutional changes. Examples of such major constitutional changes include the transferring of policy competences to the European level; the transferring of policy competences to a lower level of government, as is the case with devolution; changing the way our electoral system works; and whether or not we should elect an upper House.

"I see a range of issues that I would categorise as being clearly of a fundamental constitutional nature and that, therefore, would only be regarded as legitimate by future generations if they are ratified in some way through a referendum. I think that those questions are inherently and fundamentally significant enough to answer all the other questions that have been raised about whether there would be sufficient turnout, whether there would be a proper debate on the issue, whether people would really form their opinions on the questions that were on the table and so on. I think that they do by their nature.

"You can, of course, have referendums on a whole range of other minor issues, but questions will always be raised afterwards about whether there was a legitimate outcome. For example, California recently had a referendum on the legalisation of marijuana, but I imagine that there will be another referendum next year, and another one the year after that and so on. In Texas, they have referendums in local communities on whether they should ban smoking or ban alcohol. You have a referendum every year on the same issue, because people question any one binding outcome on whether it was the right question or whether the turnout was high enough or whether people were voting on other things. When you have a fundamental constitutional question, however, the issue gets resolved for a significant time, because of its nature."[71] (Emphasis added.)

64. And in applying this approach to the UK's relationship with the EU, he regarded the UK's ratification of recent Treaties as of major constitutional significance:

"I think there should have been a referendum on Maastricht, on Amsterdam, on Nice, on the constitutional treaty, on the Lisbon treaty, on whether Britain should join EMU or on any other major question like that."[72]

65. This view corresponds with the conclusion of the House of Lords Select Committee on the Constitution, in its recent Report on Referendums in the United Kingdom,[73] in which the Committee concluded that, "notwithstanding our view that there are significant drawbacks to the use of referendums, if referendums are to be used, we acknowledge arguments that they are most appropriately used in relation to fundamental constitutional issues."[74]

Voter turnout for referendums required by the Bill

66. When asked whether he thought a sufficient number of voters would turn out for a referendum required by the Bill, the Minister said that he thought there would be a "pretty large turnout" for a referendum following the ordinary revision procedure. This was because the "issues raised would be so obviously of political importance, and the debate over the content of such a new Treaty or set of amendments would have been going on for a considerable time".[75]

67. As for a referendum after the simplified revision procedure, that the Minister said that our concern:

"about a ridiculously low turnout for a referendum might have more weight if we were talking about the simplified revision procedure where we can have a much more narrow Treaty change, or the passerelle clauses where we have also provided for a referendum lock. In answer to that, I would say two things. It would be illogical for us to say that the transfer of new competencies or powers to the EU is so politically important-over, say, common foreign and security policy-that we should have a referendum, if that is done by the ordinary revision procedure. But no referendum should apply if the same objective is to be secured through simplified revision procedure, or through a passerelle clause, which is possible in respect of common foreign and security policy through the surrender of vetoes. That would almost invite a Government that wanted to see such a change take place in the future to go for one of the latter routes, rather than the full Treaty-making process of ordinary revision procedure."[76]

68. He added that the Government had made a distinction in the Bill, in a limited number of areas, between issues significant enough to attract a referendum and those that were not. Whilst there was a "blanket referendum commitment" in the Bill for any transfer of or addition to competence, in clause 4 and in relation to passerelles the Government has tried to distinguish between those issues that it thought were politically significant, on which it was right to ask the public to express a view and on which, for that reason, the public would be willing to turn out and vote, and those that it thought were less significant.[77]

69. We asked the Minister what he thought the turnout would be for a referendum on, for example, a decision to move from unanimity to qualified majority voting on something like an EU carbon tax. He replied:

"What the proposition before people would be is that not just for a particular measure to do with carbon tax, but permanently, in the future, decisions about environmental taxation at European level could be taken by qualified majority and the United Kingdom outvoted on measures that would impose new or additional taxes upon the population of the United Kingdom, without the United Kingdom electors being able to get rid of the politicians who had been responsible for imposing them. That seems, to me, to be something that would attract the public to the ballot box."[78]

70. Professor Hix had a very different perspective. He laid emphasis on the critical importance of turnout:

"The point is whether you feel it is feasible to hold a referendum, how the referendum is going to be seen by the public and whether there is going to be sufficient turnout in such a referendum. If it is on a specific issue that is regarded as relatively technical, I cannot imagine that there would be high turnouts.

"[…] I can see how a referendum would be a useful tool to give a mandate and resolve a significant issue for a generation, for example. It would bind the hands of a majority in the Commons either one way or the other on a major issue and a major change. I just don't see how in practice a referendum could do such a thing on a relatively minor issue."[79]

71. He also thought that there was a clear link between the subject of the referendum and the turnout:

"I think there is a big difference between a referendum on a procedural issue and a referendum on a policy issue.

"[…] I would be very surprised if, on a specific issue like that, which can be constrained to those narrow issues, you would have a high turnout; I can imagine that it would be a very low turnout—far less than 50%. Potentially, it could be less than 25%. The only way in which it could become larger than 50% would be if it gradually turned into a debate about Britain's place in the EU."[80]

Voting on the question asked in the referendum

72. We asked the Minister whether a referendum on technical aspects of EU competence or procedure would not inevitably become a referendum on the country's membership of the EU. He disagreed, saying that he thought people were "mature enough to take a decision on the basis of the choice put in front of them".[81] He gave as an example a referendum on the Euro: people would be able to distinguish between the UK joining the Euro, with all the economic implications involved, and it wishing to leave the EU.

73. The reality of Part 1 of the Bill is, however, that the vast majority of the referendum lock provisions concern passerelles on voting procedures in the Council. Professor Hix thought this would have an impact on what a consequent referendum would ultimately decide:

"Any referendum on a procedural issue will ultimately turn into a debate about policy. A referendum, quite rightly under the rules of the Bill, can say that it is not about a policy issue, but about a procedural change that could allow policy in the future. But inevitably, it would come down to a debate about whether you are for or against a particular policy; about whether that policy is more likely or less likely as a result of the change; and about asking why would we be making this change anyway and what are its policy implications.

"I don't agree with the Minister that it is possible to separate things so neatly to say that it's not about whether there would be a carbon tax, but about whether or not we could have the possibility of deciding whether we could have a carbon tax plus some other things by QMV or the ordinary legislative procedure. I just don't think that the public, the media or politicians will be able to have a debate on those terms, because ultimately the public wants to know, "What are the policy implications of this? What am I actually voting on here? What are the consequences of this?" It will ultimately come down to that sort of debate."[82]

69   House of Commons Library Research Paper 10/79, 2 December 2010, page 13. Back

70   Ibid, page 29 Back

71   Q 22 Back

72   Q 27 Back

73   12th Report of Session 2009-10 (HC 99). Back

74   Para 210 Back

75   Q 144 (HC 633-II) Back

76   Ibid. Back

77   Ibid. Back

78   Q 152 (HC 633-II) Back

79   Q 8, 9 Back

80   Q 15 Back

81   Q 145 (HC 633-II) Back

82   Q 15 Back

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