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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