2Referendums and representative democracy in the UK
“A device so alien to all our traditions”?
The history of the referendum in UK politics
5.In 1945, when presented with the proposal that the continuance of the wartime coalition should be put to the public in a referendum, the then Deputy Prime Minister, the Rt Hon Clement Attlee, famously responded that he could not “consent to the introduction into our national life of a device so alien to all our traditions as the referendum”.2 Despite this claim, and the fact that it took until 1973 for the first major referendum in the United Kingdom to take place (the Northern Ireland Sovereignty Referendum - commonly referred to as the ‘Border Poll’), referendums have long featured in discussions on constitutional and political reform in the United Kingdom. Professor Stephen Tierney has maintained that the argument that the devolution of powers from Westminster would require a referendum can be seen as stretching back to 1890. A.V. Dicey, the pre-eminent constitutional theorist in British constitutional history, is more often associated with the doctrine of parliamentary sovereignty, but even he proposed a referendum on the question of Irish Home Rule.3 In the early decades of the Twentieth Century, the Conservative Party floated the idea of a referendum in the context of House of Lords reform (1910) and tariff reform debates (in 1910 and 1930).4
6.Since the first major referendum in the United Kingdom, the 1973 border poll, there have been twelve notable referendums in this country. Three of those twelve have been state-wide in nature: the 1975 vote on Britain’s continued membership of the European Community, the 2011 AV referendum and the 2016 EU referendum. The other seven have taken place solely within one of the constituent nations of the UK, and two within regions of England: London in 1998 and the North East of England in 2004; a second one in Northern Ireland, on the Good Friday Agreement in 1998; three in Scotland, of which two were on devolution, 1979 and 1997, and one on independence in 2014; and three in Wales on devolution, 1979, 1997 and 2011. There have also been a number of local referendums on local government issues, such as on reorganisations, and on the question of elected mayors.5
A competitive or complementary relationship? Referendums and Parliament
7.The United Kingdom is a representative, parliamentary democracy where the doctrine of parliamentary sovereignty has been a cornerstone of its uncodified constitution. Indeed, it has been claimed that the traditional British Constitution could be summarised in eight words: “what the Queen-in-Parliament enacts is law”.6
8.It is unsurprising, then, that the compatibility of the UK’s model of representative democracy, imbued with the principle of parliamentary sovereignty, and referendums has long been contested. There are those who oppose the use of referendums in the belief that they undermine either, or both, parliamentary sovereignty and representative democracy. There are others, meanwhile, who believe that referendums can complement the sovereignty of Parliament and are in keeping with our system of parliamentary government.7
9.Critics of the referendum warn that referendums by their very nature undermine the UK’s representative, and parliamentary, democracy, not least when there is a clear difference between the views of a majority of the public and the majority of parliamentarians.8 The trustee model of representation was formulated by Edmund Burke MP, Irish MP and philosopher, who told the electros of Bristol that “your representative owes you, not his industry only; and he betrays, instead of serving you, if he sacrifices it to your opinion”. As Peter Browning noted in his evidence to the House of Lords Constitution Committee, “if the people vote one way, their representatives another, who should prevail, who is sovereign”?9
10.For proponents, on the other hand, referendums can enhance the quality of representative democracy and have been used across the world, in countries such as Switzerland, Australia and New Zealand, and in some US states, such as California, without endangering representative democracy.10 As, Dr Alan Renwick from the Constitution Unit at UCL noted, “most democracies hold referendums and there is no evidence to suggest that the existence of referendums undermines the broader representative democratic process”.11 Professor Stephen Tierney, University of Edinburgh, suggested that “the referendum can be a useful way to engage citizens in processes of constitutional change if [ … ] well designed and well regulated”.12
Reconciling referendums and representative democracy
11.An emphasis on design, rather than the principle, of referendums was a prominent feature of the evidence submitted to PACAC’s inquiry. As Professor Tierney acknowledged, referendums can generate heat, with the risk of “ill-tempered and potentially bitter referendum campaigns”. As a result, “it is of the highest importance [ … ] that the process of the referendum itself be fair and be seen to be so by both sides: that the result is agreed to, even if it is not agreed with, by losers as well as winners”.13
12.Of particular importance then, is the choice of issue put forward to the electorate at a referendum. Since the 1970s, there has been a growing trend towards the use of the referendum to settle major constitutional questions in the United Kingdom, with Professor Vernon Bogdanor claiming in 2009 that “there can be little doubt [ … ] that the referendum has now become part of the British constitution”.14 While Bogdanor acknowledged that the absence of a codified constitution meant there was little certainty as to the precise role of the referendums, he has nonetheless suggested that “a series of persuasive precedents” have developed as to the circumstances in which referendums should be called.15 These precedents have included issues of sovereignty and the scope of Westminster’s power. For example, the devolution referendums of 1979 and 1997; the constitutional position of Northern Ireland in 1973 and, in the form of power sharing, in 1998; and the UK’s membership of the European Communities in 1975.16
13.The House of Lords Constitution Committee in its 2010 report, Referendums in the United Kingdom, drew a similar conclusion about the bluntness of referendums and noted the “significant drawbacks” to these devices.17 However, their Lordships argued that “if referendums are to be used, they are most appropriately used in relation to fundamental constitutional issues”. While they did not believe it is possible to provide a precise definition of what constitutes a “fundamental constitutional issue” (not least because of the absence of a codified constitution), they suggested that any proposals to do the following would fall within this definition:
- To abolish the Monarchy;
- To leave the European Union;
- For any of the nations of the UK to secede from the Union;
- To abolish either House of Parliament;
- To change the electoral system for the House of Commons;
- To adopt a written constitution; and
- To change the UK’s system of currency.18
14.The UK is, in principle, a representative democracy. The referendum in the United Kingdom has been viewed by some as a device which is both alien to our constitution principles and a potential threat to parliamentary sovereignty. However, referendums have become part of the UK’s largely uncodified constitution, with over a dozen referendums, since the early 1970s, on issues ranging from the future of Northern Ireland to the voting system used for Westminster elections. On the basis of these precedents, we agree with the House of Lords Constitution Committee’s judgement in 2010 that, if referendums are to be used, they are most appropriate as a device for resolving questions of key constitutional importance, and we consider them appropriate when issues cannot be resolved through the usual medium of party politics.
The importance of a clear question for a clear outcome
15.An additional design consideration, closely interwoven with the choice of subject put to the electorate at a referendum, is the clarity of the question itself and its potential outcomes. For example, in their written evidence, the Sir Bernard Crick Centre (Crick Centre) warned that referendums, in their view a “blunt democratic instrument”, were “clearly problematic where the matter to be decided is a complex issue”.19 Indeed, John Sturrock QC (a specialist adviser to PACAC) has noted that the binary nature of referenda serve to polarize debate, and are therefore not the most appropriate way to make decisions and move forward on major constitutional issues.
16.In the context of the 2016 EU referendum, the lack of clarity as to the potential consequences of a Leave vote was criticised by some witnesses. The UK in a Changing Europe project suggested that while at one level, the EU referendum posed “the simple question do the British people want to stay or go?”, the reality was much more complex.20 According to their submission, “while staying was known, going was unknown” with “no route map as to what Leave actually looked like”, with the consequences of the referendum being “very hard to grasp”.21 As a result of the “crude form in which the question was put”, the UK in a Changing Europe project concluded that a “referendum was not a suitable vehicle for an issue of this magnitude”.22
17.In his submission, Dr Justin Gerlach similarly emphasised the lack of clarity regarding the potential outcome of a Leave vote. According to Dr Gerlach, “a referendum should only be undertaken when a black-and-white binary choice is presented”. He explained that while the referendum appeared to be a binary decision between the status quo and leaving, “the Leave option covered several widely different approaches, from a clean break ‘hard Leave’ to a EU-access at all costs ‘EU-lite’”.23 This was in marked contrast to the AV referendum, “an illustration of a truly binary referendum”, when voters were asked to make a choice “not between the status quo and electoral reform … but between the status quo and the AV version of reform”.24 It was of course the intention of the Remain side that the detail of the Leave proposal should be unclear and it also suited the Leave campaign that they should not be tied to a particular plan for Leave, but the principle of the question was clear.
18.In contrast, however, Professor Richard Ekins argued that it was “entirely proper for Parliament to put the question of membership of the EU to the electorate for decision”.25 He added:
This was a question that called out for decision other than by Parliament itself, not only because it concerned a central question about constitutional identity and about the self-constituting choice of whether to embrace or reject membership of a larger political community (the emerging partial state that is the EU), but also because of the continuing divergence between elite opinion (largely in favour of membership) and mass opinion (in the event, in favour of exit).
Furthermore, while Professor Tierney criticised the lack of clarity in the European Union Referendum Act 2015 as to the legal effect of the referendum, he nonetheless emphasised that the referendum, although not perfect, was a “free, fair and deliberative process” and “although many were unhappy with the result”, its legitimacy had not been the subject of serious legal challenge.26
19.If the results of referendums are to command the maximum of public support, acceptance and legitimacy, then they must be held on questions and issues which are as clear as possible. Voters should be presented with a choice, where the consequences of either outcome are clear. There is bound to be uncertainty arising from what might be termed a “bluff-call” referendum, like the 2016 EU referendum, but this should not limit how the participants campaign on either side. The UK Government initiated the process which led to the referendum, despite being against the suggested proposal, and with the aim of using a negative result to shut down the debate about the question at issue. Moreover, the referendum was confined to a tight question, on the basis of a clear binary choice. There could, however, have been more positive efforts to explain, and therefore to plan for, the consequences for voters in the event of either outcome. This would have required providing impartial consideration of the outcome which the Government clearly did not want.
The legal status of referendums
20.The doctrine of parliamentary sovereignty, allied to the absence of a codified constitution, has resulted in referendums in the UK generally being treated as advisory, rather than legally binding.27 The sole exceptions to this general rule were the AV referendum in 2011, and, in a more complicated fashion, the 1979 devolution referendums in Scotland and Wales, where the legislation enacted the legal consequences of the result.28
21.However, as Dr Renwick, of the Constitution Unit, University College London, notes, referendums “are in practice treated as binding”.29 Professor Ekins, of St John’s College, Oxford, while stressing Parliament’s autonomy and sovereignty, contended that the referendum placed “an obligation in political morality on Parliament and the Government to take action to make it the case that [the] UK ceases to be a member of the EU”.30 Similarly, the Electoral Reform Society emphasised that regardless of whether a referendum is legally binding or not, “it is clear that referendums are viewed as morally binding on the political system” and that “citizens’ expectations are that referendum results will be acknowledged and fulfilled”.31 However, few, if any, anticipated the legal challenge that ended with the Supreme Court Ruling of 24 January 2017. While this did not challenge the result of the EU Referendum, it did underline how little certainty there was about what might follow a Leave vote.
22.The then Prime Minister, Rt Hon David Cameron, insisted during the campaign that he would not resign in the event of a Leave vote.32 This assurance proved false. However, the recent experience of other EU countries where the government in power has lost a referendum shows that Prime Ministers often remain in office in such circumstances, albeit often following a re-negotiation and the winning of a further referendum.33
23.Parliamentary sovereignty, and the associated principle that no Parliament can bind a successor, makes the concept of a legally binding referendum impossible in theory. However, it is clear that, in reality, referendums are seen by the public as conferring an obligation on parliamentarians to deliver the result. Parliament has delivered this, and the EU (Notification of Withdrawal) Bill completed its passage through both Houses, and received Royal Assent on 16 March 2017.
24.In other countries, referendums are not conducted on the basis that a Prime Minister must resign in the event of losing a referendum. A more responsible conduct of the Government’s case in the run up to the referendum, and proper planning for a Leave vote, would not have opened up so much new controversy nor left the Prime Minister’s authority and credibility undermined. Using a referendum as a “bluff call” in order to close down unwelcome debate on an issue is a questionable use of referendums. Indeed, it is incumbent on future Parliaments and governments to consider the potential consequences of promising referendums, particularly when, as a result, they may be expected to implement an outcome that they opposed.
Conclusion
25.The relationship between the direct democracy of a referendum and the established expectations of representative democracy requires careful management. We agree that it is of the highest importance that the referendum process is seen to be fair, by both sides, and that the result is agreed to, even if not with, by both sides. This is particularly important given the public’s expectation, post-referendum, that the result will be accepted and implemented.
26.To achieve this level of acceptance and legitimacy, referendums, therefore, need to be designed in such a way as to provide the utmost clarity for parliamentarians, campaigners and, above all, the electorate. Referendums should be limited to matters which lend themselves to a binary question. Confusion as to the possible consequences of a referendum result serves only to heighten the potential tensions between referendums and representative democracy and risks increasing the public’s disenchantment with politics. Referendums are the creations of Parliament and the Government. Parliament and the Government are therefore accountable and must take responsibility for the conduct of referendums, and the fairness of the question, and there should be proper information about, and planning for, either outcome.
2 Clement Attlee quoted in, Bogdanor, V., The People and the Party System: The Referendum and Electoral Reform in British Politics, (Cambridge, 1981), p.35.
3 Tierney, S., Constitutional Referendums: The Theory and Practice of Republican Deliberation, (Oxford, 2012), p.108; Dicey, A.V., ‘Ought the referendum to be introduced into England?’ Contemporary Review 57 (April, 1890).
4 Horwill, H. The Referendum in Great Britain, Political Science Quarterly (September, 1911) Vol. 26, No. 3, pp. 415–431; Bogdanor, V., The People and the Party System: The Referendum and Electoral Reform in British Politics, (Cambridge, 1981), p.34.
5 Mayoral referendums were held in 2012 in 11 of England’s largest cities to determine whether or not to introduce directly-elected mayors to provide political leadership, replacing their current council leaders, who are elected by the local council. Advisory referendums were also held in Edinburgh in 2005 and in Greater Manchester in 2008 which both rejected local transport strategies, which included congestion charges.
6 Bogdanor, V., The New British Constitution, (Oxford, 2009), p.13.
7 This divergence of view was captured by the House of Lords Constitution Committee in its 12th Report of Session 2009–10, Referendums in the United Kingdom, HL Paper 99, (see: paras. 13–59)
8 Dr Stephen Barber (EUR0012); The Sir Bernard Crick Centre, University of Sheffield (EUR0062); the nature of the UK’s representative parliamentary democracy is discussed later on in this report.
9 House of Lords Select Committee on the Constitution, Referendums in the United Kingdom, 12th Report of Session 2009–10, HL Paper 99, para. 58
14 Bogdanor, V., The New British Constitution, (Oxford, 2009), p.173.
15 Bogdanor, V., The New British Constitution, (Oxford, 2009), pp.186–188.
16 Bogdanor, V., The New British Constitution, (Oxford, 2009), pp.186–189.
17 House of Lords Select Committee on the Constitution, Referendums in the United Kingdom, 12th Report of Session 2009–10, HL Paper 99, para.62.
18 House of Lords Select Committee on the Constitution, Referendums in the United Kingdom, 12th Report of Session 2009–10, HL Paper 99, para.94.
26 In contrast to the 2011 AV referendum, where section 8 of the Parliamentary Voting Systems and Constituencies Act 2011 included provision requiring the Government to either make an order commencing, or repealing, the Alternative Vote provisions of the Act (Parliamentary Voting System and Constituencies Act 2011, s.8); Professor Stephen Tierney (EUR0072).
27 See, for example: House of Lords Select Committee on the Constitution, Referendums in the United Kingdom, 12th Report of Session 2009–10, HL Paper 99, paras. 190–197; and Rogers, R. and R. Walters, How Parliament Works (7th Edn.), (London, 2015), pp.370–371; Professor Stephen Tierney (EUR0072).
28 As Dr. Craig Prescott explains in his written evidence, in 1979 the ‘Cunningham Amendment’ made to the Wales Act 1978 and Scotland Act 1978 meant that if less than 40% of the total eligible electorate voted in favour of devolved assemblies for Scotland and Wales, then the legislation had to be repealed. However, if the 40% figure was met, and the result been in favour of creating either assembly, then there was no obligation for the Government to commence the legislation (Dr Craig Prescott (EUR0098), see also: Bogdanor, V., Devolution in the United Kingdom, (Oxford, 1999), pp.186–191; 199).
32 See, for example, The Independent, David Cameron says he will not stand down - even if he loses the EU referendum.
33 As for example after the Danish Maastricht Treaty Referendum, 2 June 1992, the Irish Nice Treaty Referendum, 7 June 2001, or the Irish Lisbon Treaty Referendum, 1 June 2008.
11 April 2017