1 Referendums in the UK
Introduction
1. In this Report, the third in our series on the
Referendum on Separation for Scotland, we consider how referendums
are used in the United Kingdom to determine constitutional questions,
what their legal significance and basis are, and the implications
for a proposed referendum on separation.[1]
2. Many countries use referendums to decide on a
range of day to day public policy questions. This has not been
UK practice. Nevertheless since the 1970s, when used to decide
constitutional questions, referendums have become an accepted
part of British political life. The table below shows how often
they have been used, [2]
what constitutional questions they have decided, and what the
legislative basis of each was.
UK referendums (excluding local referendums) since
1973
| Referendum | Question
| Answer Format |
Result | Legislative basis
|
| "Border poll" Northern Ireland
March 1973
| Do you want Northern Ireland to remain part of the United Kingdom?
Or
Do you want Northern Ireland to be joined with the Republic of Ireland outside the United Kingdom?
| Tick box
Tick box
| Northern Ireland remained part of the United Kingdom.
| Northern Ireland (Border Poll) Act 1972
|
| Membership of the European Community UK
June 1975
| Do you think that the United Kingdom should stay in the European Community (the Common Market)?
| Tick YES box or
NO box
| The UK remained in the European Community.
| Referendum Act 1975 |
| Devolution to Scotland
March 1979
| Do you want the provisions of the Scotland Act 1978 to be put into effect?
| Tick YES box or
NO box
| Devolution did not proceed as the requirement that 40 per cent of the electorate had to vote "Yes" was not met
| Scotland Act 1978 |
| Devolution to Wales
March 1979
| Do you want the provisions of the Wales Act 1978 to be put into effect?
| Tick YES box or
NO box
| Devolution did not proceed.
| Wales Act 1978 |
| Referendum | Question
| | Result
| Legislative basis
|
| Devolution to Scotland
September 1997
| I agree that there should be a Scottish Parliament
or
I do not agree that there should be a Scottish Parliament.
| Tick box
Tick box
| The Scottish Parliament was established.
| Referendums (Scotland and Wales) Act 1997
|
| | I agree that a Scottish Parliament should have tax-varying powers
or
I do not agree that a Scottish Parliament should have tax-varying powers.
| Tick box
Tick box
| The Scottish Parliament was given tax-raising powers.
| |
| Devolution Wales
September 1997
| I agree that there should be a Welsh Assembly
or
I do not agree that there should be a Welsh Assembly.
| Tick box
Tick box
| The Welsh Assembly was established.
| Referendums (Scotland and Wales) Act 1997
|
| Greater London Authority London
May 1998
| Are you in favour of the Government's proposals for a Greater London Authority, made up of an elected mayor and a separately elected assembly
| Tick YES box or
NO box
| The Greater London Authority was established.
| Greater London Authority (Referendum) Act 1998
|
| Referendum | Question
| | Result
| Legislative basis
|
| Belfast Agreement Northern Ireland
May 1998
| Do you support the Agreement reached at the Multi-Party Talks in Northern Ireland and set out in Command Paper 3883?
| Tick YES box or
NO box
| Community consent for continuation of the Northern Ireland peace process on the basis of the Belfast Agreement was given.
| Northern Ireland (Entry to Negotiations etc) Act 1996
|
| Elected Regional Assembly North East of England
November 2004
| Should there be an elected assembly for the North East region?
| Tick YES box or
NO box
| The Elected Regional Assembly for the North East was not established.
| Regional Assemblies (Preparations) Act 2003
|
| Legislative powers of the Welsh Assembly
March 2011
| Do you want the Assembly now to be able to make laws on all matters in the 20 subject areas it has powers for?
| Tick YES box or
NO box
| The Assembly now has these powers
| Government of Wales Act 2006
|
| Electoral Reform May 2012
| At present, the UK uses the "first past the post" system to elect MPs to the House of Commons. Should the "alternative vote" system be used instead?
| Tick YES box or
NO box
| The parliamentary voting system was not changed
| Parliamentary Voting System and Constituencies Act 2011
|
3. There is no legal rule about what issues should be the subject
of referendums, and there has been criticism that Governments
have resorted to calling referendums as a tactical device. Nevertheless
the House of Lords Constitution Committee was able to conclude
that: "if referendums are to be used, they are most appropriately
used in relation to fundamental constitutional issues".[3]
Among their examples of fundamental constitutional issues, that
Committee included: "For any of the nations of the UK to
secede from the Union".[4]
4. The witnesses who appeared before us broadly agreed.
Professor John Curtice, of Strathclyde University, thought there
was a "de facto convention that any constitutional
change in the UK requires to be legitimated by a referendum".[5]
Professor Vernon Bogdanor's view was that there was "a strong
argument of principle for having referendums on these matters
because the opinion of the people may not be the same as the parties
which represent them."[6]
5. Questions of separation and national status, such
as devolution, are clearly often seen as suitable for referendums
internationally. Dr Matt Qvortrup, of Cranfield University, referred
in his evidence to "222 referendums since Napoleon dealing
with national issues".[7]
By "national issues", he meant a question of separation
or more autonomy.
6. No witness argued that Scotland should be able
to separate from the UK without a referendum. We
agree that if Scotland is to separate from the UK is should only
do so if that is the decision of the Scottish people in a referendum.
The effect of a referendum
7. There was some confusion in the evidence we heard
as to whether the result of a UK referendum was 'advisory' or
'binding'. This distinction as explained by Professor Stephen
Tierney, of the University of Edinburgh's School of Law, was the
difference between "a legal obligation to abide by the result
and a political commitment."[8]
8. Whether a referendum is formally legally binding
in that sense will depend on the structure of the legislation
which enables it. Professor Curtice gave the example of the Parliamentary
Voting System and Constituencies Act 2011, which was legally binding
in the sense that "the relevant clauses [on changing the
voting system] [...] would come into effect if there was a positive
vote in the referendum".[9]
As Professor Tierney acknowledged, no referendum was ever wholly
binding; Parliament could always repeal the legislation creating
the obligation. By contrast the first referendum on European issues
in 1975 had no direct legal effect, though the Government made
clear that it would see itself as bound by the result, and it
was agreed by all concerned that the referendum was to decide
whether the UK remained in the Common Market.
9. However, for present purposes, this is a distinction
without a difference. All referendums are advisory in the sense
that legislators could ignore the result or reverse the result
by passing a law. But they do not: and none of our witnesses argued
that governments would or should be able to ignore the outcome
of a referendum because it was only 'advisory'. As Professor Curtice
put it, a referendum on independence would be "advisory in
the technical sense but […] both sides would regard it as
binding on them politically."[10]
10. Only Professor Bogdanor qualified this. He though
that Parliament might have some leeway to consider what should
be done if a referendum produced a result only by a very small
margin on a very low turnout.[11]
11. A referendum
decides the issues that Parliament (or the Scottish Parliament)
has put to the people for decision. We
agree that a referendum vote should be decisive on whether or
not Scotland remains part of the UK. A number of consequences,
however, follow from this.
12. First, voters should be told
clearly that if the vote is in favour of separation, Scotland
will cease to be part of the United Kingdom. The referendum is
not 'consultative' in the sense that separation might or might
not follow. All previous referendums in the UK have decided the
matter put to the voters, and so will this one.
13. Secondly, because a referendum
will decide the matter, it is of the greatest importance that
it is, and is seen to be, scrupulously fair and that the processes
leading up to it are accepted by both sides of the constitutional
argument. There must be no scope for either side to cry 'foul'
after the result is announced. As we said in our previous Report
on this subject, this is significant for the wording of the question
to be put to the voters, but it affects other issues, to which
we shall return in later Reports.
1 See also Sixth Report of Session 2010-12, The
Referendum on Separation for Scotland: Unanswered questions,
HC 1806, and Eighth Report of Session 2010-12, The Referendum
on Separation for Scotland: Do you agree this is a biased question?,
HC 1492 Back
2
Adapted from House of Lords, Twelfth Report of the Select Committee
on the Constitution, Session 2009-10, Referendums in the United
Kingdom, HL Paper 99 Back
3
Twelfth Report of the Select Committee on the Constitution, Session
2009-10, Referendums in the United Kingdom, HL Paper 99,
para 94 Back
4
Ibid. Back
5
The Referendum on Separation for Scotland: Oral and written
evidence, Session 2010-12, HC 1608, Q 259 Back
6
Ibid. Back
7
HC 1608 Q 667 Back
8
HC 1608 Q 198 Back
9
HC 1608 Q 261 Back
10
The Referendum on Separation for Scotland: Oral and written
evidence, Session 2010-12, HC 1608, Q 261 Back
11
HC 1608 Q 262 Back
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