Referendums in the United Kingdom - Constitution Committee Contents

Examination of Witnesses (Questions 1-20)

Professor David Butler and Professor Robert Hazell

6 JANUARY 2010

  Q1  Chairman: Professor Butler and Professor Hazell, can I very warmly welcome you to the Committee and thank you very much for coming to join us, particularly in the light of the extremely inclement weather conditions, and I know, David, you in particular have come all the way from Oxford through the snow. We are being broadcast, so could I ask you please, as if it were necessary, formally to identify yourselves for the record and then, if you want to make a brief opening statement before we have our questions, please do so.

Professor Butler: I am David Butler, a Fellow of Nuffield. I have in the past written three books about referendums and helped, with Robert Hazell, to run a committee that looked into the working of referendums. The only thing I would like to say about the work that I did, a lot of which I have forgotten, is that I started by making a list of every referendum that had taken place at the nationwide level in the history of the world, and this actual list changed my expectations a great deal. Firstly, I discovered that referendums were not ground-breaking, where you have one and then more and more and more. In many cases, the third referendum came longer after the second referendum than the second referendum came after the first, but what was striking was that, virtually speaking, every democratic country in the world has had a referendum. The only exceptions are the United States, which of course has had an incredible number of referendums at the state level, but has not had one at the national level, India, Japan and Israel. Every other country you would think is respectably democratic has tried it but very often they have tried it only once or twice. The countries which have had lots of referendums, with two exceptions, are dictatorships getting plebiscites judged by themselves. The two exceptions are Switzerland, (and actually Liechtenstein as well, which have done a great deal by referendums, as you well know), and the other one is Australia which has compulsory voting and is required to have a referendum on anything affecting federal-state relations, as you well know, my Lord Chairman. I just wanted to draw attention to those. The last point is that a very small proportion of referendums end up fifty-fifty and usually the outcome is pretty predictable. There are some very important ones, as you obviously know, that have been fifty-fifty, but that has not been the norm.

  Q2  Chairman: Thank you very much indeed, David. Professor Hazell?

  Professor Hazell: I am Robert Hazell, Professor of Government and the Constitution and Director of the Constitution Unit at University College London. If I may, I will make one brief opening remark, which complements, I hope, quite neatly that of David Butler's, but I will confine myself to referendums in the UK. As everyone knows, these were unknown in Britain until 35 years ago, the first referendums being held in the mid-1970s, a referendum in Northern Ireland on whether they should remain part of the United Kingdom or unify with the Irish Republic, known then as a "border poll", and the only nationwide referendum held in Britain's constitutional history in 1975 on the renegotiated terms of accession to the European Community and, since then, there have been—I have not added them up—a dozen or so referendums. Can we deduce whether there is yet any doctrine in the UK about the use of referendums? I do not think we can yet form an overarching or complete doctrine. They have been held so far on constitutional matters, but we cannot yet say that a referendum is required for any major constitutional change. If that had been the doctrine, then I would argue that we should have held a referendum on the Human Rights Act 1998 which incorporated the European Convention on Human Rights, and we should also have held a referendum on the major reform of the House of Lords that took place in 1999. At best, I think we can venture a partial doctrine that referendums are required for devolution, for a constitutional change whereby the Westminster Parliament delegates legislative power to a subordinate legislative body, so referendums were held in Scotland, in Northern Ireland and in Wales before their devolved assemblies were established in the late-1990s, and referendums were held here in London before the establishment of the Greater London Authority, and in the North East a failed referendum in 2004 on the Government's proposal for a North East Regional Assembly. The latter two were not legislative bodies, but referendums were deemed to be desirable. I would finish by saying that there is now a kind of reciprocal doctrine in relation to those devolved institutions. Many people would argue that a referendum would be required before the Scottish Parliament were abolished or before its powers were severely altered because the Scottish Parliament has, as it were, a popular mandate from the people of Scotland as well as a legislative mandate from this Parliament through the Scotland Act 1998.

  Q3  Chairman: Thank you both very much indeed for extremely stimulating introductions to this inquiry. Could I begin by asking an impossible question where we would be most interested in your views as to what, if any, constitutional principle you both think should govern the decision to hold future referendums?

  Professor Butler: I would quote Austen Chamberlain: "`Unconstitutional' and `constitutional' are terms used in politics when the other fellow does something you don't like"! I am an extreme pragmatist about this. Referendums have sometimes been a very good political device and saved this country and other countries problems and they have legitimised things that were going to happen, but I do not think I have any universal principle to offer which makes something a constitutional issue, and I would not diverge significantly from what Robert said a moment ago about the sorts of situations when it might be politically expedient to have such a referendum, but I do not think it is—

  Q4  Chairman: When you say that you would not diverge significantly, how would you diverge?

  Professor Butler: Well, there are quite a large number of things which might fall under his categories which would be de minimis. I think it is absolutely crazy for the Conservatives to say that any further change of relations with Brussels should be subject to a referendum because, of course, so many of the changes in relation to Brussels may be absolutely trivial and entirely in our interests, non-controversial. If you follow literally the thinking that any change involves a referendum, you are getting yourself into a lot of bureaucracy and nonsense.

  Professor Hazell: I agree with David Butler. Trying to express the answer in the language of constitutional principle and taking my opening remarks a little bit further, we could ask: is a referendum required whenever Westminster delegates legislative power? In my first answer, I talked about delegation to subordinate legislative bodies, the devolved institutions, but we might equally ask the question when Westminster delegates legislative power to a superior, supra-national body, like the European Parliament. There clearly has been no established doctrine so far that, in those circumstances, a referendum is required. We have had four or five European treaties which have significantly adjusted the balance of powers between the Member States and the institutions of the European Union without a referendum being held in the UK, save in 1975 on the terms of accession. The Conservative Party, in a speech delivered by David Cameron on 4 November after the Lisbon Treaty became fact, has set out its new policy on Europe and one element in that is a commitment to pass a law, if they are elected to form the next Government, which would be passed by Westminster declaring that any future European treaty could not be entered into by the United Kingdom without a national referendum. It is a separate issue whether such a statute would be binding on future parliaments, but there is also the issue that David Butler has raised about whether a national referendum would be required in relation to all future EU Treaties, however small. For example, if there is a new Accession treaty with, I think, Croatia, being possibly the next likely applicant Member State, would a national referendum be required to approve the Accession treaty in relation to Croatia? No doubt these are the issues which will get debated here possibly by this Committee as well as in this House if a Bill is introduced after the next election to this effect.

  Q5  Baroness Quin: I was interested in what Professor Butler said about not really seeing a universal principle here, but more seeing referendums as a good political device. I can understand the reason why you say that, but it is quite, I think, a hard thing to explain to the public that it is a good political device rather than a matter of constitutional principle. I wondered also whether or not you had any views on whether a referendum should refer to a fairly straightforward question, or whether it could be on something rather complex? Obviously, this was an issue that was raised at the time of the Lisbon Treaty, which was a long, complicated treaty with some bits in that some people would like and some bits in that people would not like, but even some of the devolution referendums have been about a range of complex powers, and I just wondered if you had any thoughts about whether or not a referendum should be really on something fairly simple where there is a "yes" and a "no" alternative, or whether it is appropriate to use them in these other situations? At least in 1975, it was a sort of "yes" and "no" question about whether Britain should accept the arrangement with the EU or not.

  Professor Butler: But the Treaty of Rome, as you know better than anyone here, is an extraordinarily complex treaty. I think the issue is fairly simple. I think the Scottish and Welsh referendums, although they did deal with obviously complex and detailed matters which affect individual people in the countries concerned, the issue was really simplifiable and straightforward. I think certainly a referendum has to be on a relatively simple issue. I think you can get into great trouble even. Countries have tried triple-question referendums or quadruple-question referendums and you get into tangles about what is meant and possible litigation. I do believe really that referendums, certainly as we live in Britain at the moment, are only going to happen when the government of the day wants it or when it would be too embarrassing (because of past promises) to get out of it. Normally they will have a referendum because they think they are going to win it and they will not have it if they are not going to win it. They will just dodge the issue. It is a matter, as we live at the moment, of straight politics. If we had got to a written constitution, we might get ourselves entangled, as the Irish got entangled (they were the only country out of 29 that actually had a referendum on Lisbon or the revised Lisbon). On the whole, governments do not want to have referendums with unexpected outcomes and they will play politics to avoid it. In some countries quite a number of referendums have been on moral issues which cut right across ordinary party lines, such as abortion and divorce. Even the issue of driving on the right or left have been things where Government just wanted to cop out of making the decision and, in some cases, did not really care much about the answer. I do think the straight business of politics lies at the heart of the referendum, whatever one may think in general, moral terms about the desirability of "consulting the people".

  Professor Hazell: May I add just two remarks? I think it can be more than just a political device. It can be an important legitimising mechanism and it can be a protective device. If you think of the long-guaranteed, bipartisan policy in relation to Northern Ireland, the people of Northern Ireland have been told since 1973, and it is in the Northern Ireland Constitution Act of that year, that Northern Ireland will not be unified with the Irish Republic, save with the consent of the people in Northern Ireland in a referendum, a so-called "border poll". I think you can view that as an important protective device for the people of Northern Ireland and it was not a policy put together to get over some party split here at Westminster. Referendums can also be important, I think, as vehicles for public education. I think the people of Scotland, Wales and Northern Ireland became a lot more aware about the proposals for their devolved assemblies than if they had been created simply by passing statutes here at Westminster because they were required or they were invited themselves to vote on the issue. Your second question was about multi-option referendums. They can sometimes be held successfully to invite people to express a preference between several options, and the best example I can think of is in New Zealand where they contemplated a change to the voting system in the early-1990s and the first referendum held in 1992 offered the people of New Zealand, from memory, five or six alternative voting systems and they were invited to vote for a preferred system which then was put in a subsequent referendum the following year, 1993, in a binary referendum as a run-off against the existing voting system, so I think you can hold preferential referendums of that kind to get a kind of indicative view from the public about what their preference might be. This may become a live issue in Scotland where, you will all know, the current SNP Government wants to hold a referendum on independence, but they have made it clear in public statements that they would not be averse to a referendum which included other options, and they have said that they would like the proposals of the Calman Commission on further powers to the Scottish Parliament to be capable of being formulated as an alternative option. That is, in effect, a challenge that they have made to the parties who set up the Calman Commission.

  Q6  Chairman: Thank you very much. Could I just follow up what Professor Butler said about governments holding referendums on questions only when they think they are going to carry the day? In the case of Australia, as Professor Butler knows, since 1991 there have been, I think, 48 referendums put by the Government to the electorate, of which only eight have resulted in a positive response, which rather gives the lie to the proposition that governments only put referendums to the electorate when they know they are going to get the result they want. Is there any feel that you both have as to what people in general feel about referendums, as to whether they want them or whether they would prefer to leave it to parliamentary democracy?

  Professor Butler: I am sceptical about there being any widespread demand to go to the Swiss model of putting lots of referendums to the public. We have evidence of the rapid decline in turnout there. Australia is a different matter because, since 1920 or so, they have had compulsory voting and, therefore, they have had 90% turnouts in referendums. One of the oddest ones that they felt they had to have which was a constitutional change when they were enfranchising Aborigines in 1966 and they got a 90% "yes" vote and among the highest votes in a democracy where a referendum had been put. I think some of the Australian history of mandatory referendums involving relations with the states. Promises of referendums have been made without any serious hope of their being carried. They offer a good warning of a more general point about referendums. Essentially they are conservative instruments where there is a scepticism about change. We did a detailed analysis when we were working on this in the 1970s at the American Enterprise Institute. There was quite strong evidence, if you took the sensible democracies of the world that had had referendums, that the general trend was of the outcome being cautionary, people being slightly frightened of the devil they did not know. I think this applies in Australia particularly where it was easy, in most cases, to build up oppositions in the small states, against the big states which led to defeated referendums. There were actually quite a number of cases where defeated referendums had a majority for them, but they were defeated by four small states being frightened of two big states. (To pass a majority of votes and of states is required).

  Q7  Lord Norton of Louth: Is it not the case that there is a difference between what people want and what they do? We know from surveys in this country when people are asked, "Do you favour referendums?" that an overwhelming majority say yes and, when you hold referendums, quite a lot stay at home. The evidence of referendums around the world shows that people generally will turn out to vote in greater numbers for candidates than they will in referendums, so therefore is there not an issue with actually getting people to turn out when they actually are faced with a referendum?

  Professor Butler: I think there is a lot to be learned from looking back at the 1975 referendum here. There was nearly a two to one vote in the opinion polls in March for saying "no" to Europe and then the Government switched and said, "Please do vote `yes'. It ended up by being two to one `yes' when it came round to June with the whole of the establishment being on the side of a `yes' vote. The public can be fairly volatile and that is its reputation. I might otherwise slip into saying, "why have referendums when you can have opinion polls", which make plain what the answer is going to be before you start. In fact there are quite a number of referendums, (and Ireland has produced several), where what looked like happening two months before did not happen on the day, and the 1975 referendum in Britain is an extreme case of that.

  Professor Hazell: I would only add that I think, to some extent, these are self-limiting. There is a high risk for any government in embarking on a referendum, a risk to its reputation if it does not get the result which it seeks or expects, and there is also a cost, we should remember. A national referendum costs about the same as holding a general election and I believe the cost of that is now about £120 million, so these are not things which any government would embark on lightly.

  Q8  Chairman: I will just observe that, amongst others, I participated, because I was then a Member of the House of Commons, in the 1975 referendum campaign. I had a number of public meetings in village halls round my constituency and I had phone-ins which were unheard-of in those days, the first time really it had ever happened, and practically nobody participated in the meetings or phone-ins at all. The Private Eye front cover was of an elderly couple in deckchairs on Blackpool beach with handkerchiefs over their heads, fast asleep, with the headline, "The great debate begins" and yet, as you say, there was a two to one, quite big turnout by today's standards. How do we account for that?

  Professor Butler: Well, there is always the difficulty that on almost any subject there is an articulate minority who care about it, but there is a huge inarticulate majority who do not give a damn. I think Europe was a big enough issue and it did get a 66% turnout and a 65% "yes" vote. Therefore it is quite a good example of what can be done and what can happen. Underlying all of these things, each time I try to find an answer I think of the exceptions and how different the story is. I am very pragmatic about it. Referendums have worked so well in so many countries as convenient ways of solving or putting finesse to a particular issue that is decided in a referendum and that has settled the matter for them, but the variations in procedure, style and the detailed rules of the game are very great indeed. This morning, I rather guiltily went back to the PPERA, the Referendums Act of 2000, and I was struck that it did not seem to be very realistic. How it would get deciphered, if we did decide to have a referendum on Europe or human rights or anything like this, you would actually go to the 20 clauses in the PPERA and you would find it would not be a description of what was actually going to be happening out on the ground. It would not be a good guidepost at all.

   Professor Hazell: I would only offer one comment in terms of the current regulatory structure set out in the 2000 Political Parties, Elections and Referendums Act, and that is in relation to the proposed controls on campaign spending. This is the one major issue where the Commission, of which David Butler and I were both members, the Commission on the Conduct of Referendums, which reported in 1996, differs in its main proposals for the regulation of referendums by comparison with the statutory regime put in place in 2000. Our Commission thought that, although it might be desirable to have spending controls, in practice it was almost certainly not feasible because in a referendum the campaigning groups for "yes" or for "no" are ephemeral bodies; they are set up simply to campaign in that referendum and afterwards they disappear. It is, therefore, very difficult to get regulatory purchase on such bodies and that is a big contrast with controlling campaigning spending in elections where the political parties, at least the major political parties, are permanent or semi-permanent organisations who hope to be fighting the next election and the next election after that and you can get regulatory purchase on those bodies because they continue in existence. It has not yet been properly tested in a national referendum, where some big money might be put out in support of one side or the other, whether the Electoral Commission will be able effectively to control the campaign spend on both sides.

  Q9  Baroness Quin: I just wondered, following what was being said earlier, if there were any statistics about how often the result of referendums have disappointed the people who brought them in? I think it was Professor Butler who said that governments tended to resort to referendums if they thought they were going to win them, but there actually seemed, it occurred to me, to be an awful lot of examples where the result has gone the other way. I suppose, even with the European referendum in 1975, that the keenest proponents of that referendum initially were those who hoped that there would be a "no" vote rather than a "yes" vote, so I just wondered if there were any statistics on that? The other point that I also wanted to raise is arising from what was said about the relationship of referendums to opinion polls because, if I think of, for example, the referendum in the North East, there had been a lot of opinion polls in previous years which had shown support for a regional assembly, even though the actual referendum result was very strongly against. I just wondered if you both felt that referendums had the danger of ossifying a situation when representative democracy is more capable of being flexible and responsive to a very strong change in public mood, whereas a previous referendum result ties you down for quite some time?

  Professor Butler: Two examples hit me immediately as you asked the question. One is de Gaulle in 1969 who had a referendum on devolution, lost the referendum and resigned. You could argue that perhaps he was getting near to the age when he wanted to resign, but it was definitely the referendum that triggered his going. Secondly, you have got the referendums in France and Holland in 2005, it was Holland's first ever referendum which made the crucial difference to the first Lisbon Treaty. In both cases, it was a shock to the incumbent government when almost all "good men and true" in both countries went for the "yes" vote and they were stumped by the electorate. Obviously, it is a dangerous area to go into and people do get it wrong because referendums may not follow the ordinary rules. People going into the polling booth are remarkably free from party constraints. There may be a strong party lead and they may be good loyal party people, but at the same time they are free to do what they like. It is like a free vote in the House of Commons when unexpected things can happen if you genuinely let people loose.

  Professor Hazell: I would only add that yes, there is a very big difference between opinion polls and referendums, so to those who ask, "Why have referendums when we can hold opinion polls?" opinion polls are, on the whole, pretty shallow and the public give off-the-cuff answers which are cost-free. In a referendum, they are voting for real and that concentrates the mind, so I think the instance you quite correctly cited of the North East Regional Assembly, where the opinion polls suggested that it might be narrowly carried and on the day four to one voted against, is not the only example where the real result has been different from what the opinion polls suggested.

  Q10  Lord Shaw of Northstead: A basic question must surely be: is the referendum really compatible with the UK's system of parliamentary democracy? If it is, if so, in what way should the referendum be used as part of such a system? For example, if it is decided that a referendum is wanted and is suitable, should some of the parliamentary procedures dealing with the motion be gone through before the final vote is taken by way of referendum?

  Professor Butler: Well, all of the referendums we have had have actually been on the basis of legislation. Specific legislation laying down that what should happen. I think referendums are quite compatible with parliamentary democracy, and the example I could offer is Australia. Australia has a decent parliamentary democracy very much modelled on British ideas and it has had 48 referendums in its history. People cite referendums as anti-parliamentary. In Britain in 1945 Attlee denounced referendums as un-British. More recently in 1975 in a flamboyant statement Reggie Maudling said he did not give a damn about the referendum, it was unparliamentary and it was unpopular. It is rather interesting that in the last ten or 15 years the referendum has been taken for granted, not an alien thing, because it was seen by quite a lot of people as an alien thing 30-35 years ago and it has now become part of the vocabulary of politics. "Let's have a referendum" is a cry that any party that is in opposition is likely to fling up when it does not like something that is happening.

  Q11  Lord Shaw of Northstead: But would you have, say, a series of debates and perhaps some of the procedures in Parliament before the final vote were taken by the country?

  Professor Butler: I think so. I find it hard to imagine an issue coming up that would not be a matter of parliamentary discussion and debate. Anyway, as we now stand at the moment, there is no provision for a referendum and a referendum would actually require primary legislation. It may be that you are going to recommend some primary legislation which would allow government to switch on a referendum like that and have it in a few weeks' time, as they are apparently doing at the moment in Iceland, but we are not there yet and I cannot conceive that there would not be a great parliamentary row if anybody tried to shunt through a referendum by standing order.

  Q12  Chairman: What we recommend is going to reflect your evidence!

  Professor Hazell: I agree that a referendum is perfectly compatible with representative democracy. As David has said, no referendum can be held in the UK without legislation, so, in effect, the elected representatives pass a law saying that they want a referendum to be held. In terms of your second question about whether a referendum should be pre- or post-legislative, I do not think there can be a universal firm answer. I argued in the mid-1990s in relation to devolution that the referendum should be a pre-legislative one and I did so, in particular, looking at the context in Wales where in the first devolution referendum held in 1979 the people of Wales had voted by approximately four to one against the then proposed Welsh Assembly, and it had taken an inordinate amount of parliamentary time and political capital on the part of the then Labour Government to get the Wales Act on to the statute book. I thought that, if a new Labour Government wanted to revisit devolution, it should, in the case of Wales at least, first ask the people of Wales whether they were interested in devolution, and that is why I strongly recommended a pre-legislative referendum, which was held in 1997 on the basis of a White Paper, and I would argue that the White Paper was sufficiently detailed that those people in Wales who bothered to read the White Paper had a clear idea of the main proposals for the Welsh Assembly.

  Q13  Lord Shaw of Northstead: Was that White Paper fully discussed in the Houses of Parliament?

  Professor Hazell: Your legal adviser may be able to help us; he is a much greater expert on Wales than I am. The legislation, and it was, I think, the first Bill passed by the new Labour Government in 1997, authorising that the referendums went through within a couple of months, was probably passed in June, the White Paper was published in July and the referendum was held in September, so the text to the White Paper probably was not available during the parliamentary debates about the referendum.

Chairman: "Exhaustive" would not be the word that sprang to mind!

  Q14  Lord Norton of Louth: If we come on to the practice of referendums, the ones that we have now held, the one national one and then the sub-national ones, in terms of the actual application did we get anything wrong and did we get anything particularly right in terms of best practice in relation to referendums?

  Professor Butler: I was not around in Wales or Scotland significantly in those more recent cases, but I was very much around in the 1975 referendum and there we were, in a sense, lucky in that we did have in the legislation the idea of umbrella groups. There was a "pro" umbrella group which was very much a tripartisan group of people for the established parties. Then there were the breakaway one or two Conservatives, Neil Martin and so on, and quite a number of Labour people, including seven members of the Labour Cabinet under the "anti" umbrella. The "pro" people had all the great and good on their side and they spent a little over £3 million, whereas the "antis" spent under £200,000 of which £175,000 was contributed by the state to each umbrella organisation. That inequality stuck very hard in their minds. Pat Nairne and I ran a conference 20 years after the 1975 referendum. The indignation of Jack Jones and Tony Benn and other people who had been on the minority side; was very patent; the unfairness of it stuck very deep in their minds and there was great bitterness. There was this total inequality between £3 million and £150,000 in the actual campaigning. But at least the group did more or less stick together, though they had some difficulties. Some people would not speak to Enoch Powell. Enoch Powell was in the "anti" umbrella group and some people in the "anti" umbrella would not step on the same platform as Enoch, but they did actually manage to work under two umbrellas which did more or less work, so that the BBC did not have any difficulty in deciding the two sides to the referendum. If there are many sides to a referendum, it can be enormously complicated. There are some troubles going on at the moment about debates between leaders about minor parties being represented. I think that, if you had a referendum where there was a wide diversity of people on one side who did not get on with each other, they would be claiming their own separate slots on the air and you might get a great deal of litigation.

  Professor Hazell: May I briefly add that in relation to all the devolution referendums held in the late-1990s, they of course were held before the Political Parties, Elections and Referendums Act of 2000 and before the Electoral Commission came into being, so the Act had to prescribe the rules for the conduct of the referendum, the appointment of a chief counting officer and the like, so the honest answer is that we have not properly tested in a big referendum the machinery of the 2000 Act. I think I am right that the only referendum that has been held where the Electoral Commission was required to supervise it was the North East referendum in the autumn of 2004 and, from memory, the one difficulty that I remember being reported was identifying campaigning groups on either side because the Electoral Commission is empowered under the 2000 Act to make grants to help finance the "yes" and the "no" campaigns and, for that purpose, they, therefore, have to identify one umbrella body on each side of the argument. I cannot remember, Lady Quin might be able to help, on which side they had a difficult decision to make.

  Q15  Baroness Quin: I think it was the "no" side initially.

  Professor Hazell: Thank you. There were two candidate groups, as it were, both applying to the Electoral Commission for funding. From memory, I think the funding in question was £150,000, so these were not large grants. In the national campaign on a much more high-profile or controversial issue, let us postulate entry into the single European currency on which, incidentally, all major political parties have a commitment that a referendum will be held if the Government ever wanted to take us into the euro, you can imagine it would be more difficult potentially for the Electoral Commission, and we come back to the issue again about controlling campaign expenditure because there would be possibly very large private donations funding one or the other campaign. I hope this Committee might ask the Electoral Commission themselves both about the experience in 2004 and about how prepared they feel for any future referendums.

  Q16  Lord Norton of Louth: So is there any way we can address it because David Butler mentioned the massive disparity in funding in the campaigns in the one national referendum we had and I think there was a similar disparity, was there not, in Wales in terms of the funding there between the "yes" and "no" campaigns, so the 2000 Act was designed to try and address the problem, but, from what you were saying earlier, you do not think the 2000 Act is actually adequate?

  Professor Hazell: No, I think it is important and I support the provisions in the 2000 Act which provide for the making of grants from public funds to give each campaigning umbrella body a minimum sum of campaigning money. Where I am not confident about the provisions is that there are detailed provisions enabling the Electoral Commission to regulate campaign expenditure and, because, as I said earlier, by definition, the campaigning bodies will be ephemeral, it will be quite difficult through legal mechanisms and subsequent legal enforcement to control the expenditure by bodies which may have gone out of existence.

  Professor Butler: I am ignorant of the details of Irish law, but what is remarkable in the Irish story is that in the first Lisbon referendum a leading, flamboyant, rich man charged in and moved opinion really quite substantially in the opinion poll evidence and got a "no" vote. He crashed in again in the second referendum and had no impact at all. I do not know what the regulation is and what would prevent effectively that kind of intervention. It is the definition of what is a campaign activity, what happens in the press and so on and how far the Electoral Commission can start censoring what is in the press.

  Q17  Baroness Quin: I just wanted to know if either of you wanted to add anything about your knowledge of the international experience of referendums, and are there any cases that we should consider as either good or bad examples in the use of such referendums?

  Professor Butler: I can answer that in relation to one particular question which you raise, which is conditional majorities. There were quite a wide variety of rules in Denmark and in Weimar Germany of what happens. In Weimar Germany, it had to be a positive vote of, I think, more than 50% of the electorate; the thing to do if you are a negative person is to say, "Don't vote" because a non-vote is equivalent to a vote in those circumstances. There are slight variations in the thresholds in Denmark. There is one technical question that comes if you have thresholds and that is: what is the electorate? I remember arguing with John Smith about this in 1978. The real electorate figure is, we know, bogus really. The electoral register represents only about 90% of the electorate and about 10% of the names are dud names anyway, so what is the electorate? What about people who are plurally registered and so on? You have got to get your facts very accurately done if you have thresholds brought into the argument.

  Q18  Baroness Quin: Could I also follow up on something that I asked earlier which Professor Hazell replied to, which was referendums and opinion polls, and refer to the Irish example which Professor Butler talked about a few minutes ago where obviously a second referendum was held, but only a very short time after the first referendum? Professor Hazell, in his reply to me, seemed to indicate that people really focused on the subject at the time of the referendum and, therefore, in a way, the referendum result is more valid than an opinion poll, but this seemed to be an example where then opinion shifted subsequently, not because of changes in the Lisbon Treaty, but because of the climate whereby suddenly the Irish electorate felt they would rather be part of this larger organisation than, at a time of financial turbulence, being outside that organisation or causing difficulties for that organisation. What does this mean in terms of what we think about referendums? Is it not rather cynical to simply hold a second referendum a short time after the first to try and get a different result, or is this completely valid if public opinion has genuinely changed?

  Professor Butler: I think it can change and is meant to change. I think in Ireland the establishment was saying, "Vote yes" the first time, but did not much bother about it. They took for granted that they were going to win the first time and, when they lost, they were shaken and they pulled their fingers out and really got going on the second referendum, put money and effort into it and won by even more than they expected to.

  Q19  Chairman: Professor Hazell, the final word?

  Professor Hazell: If it is a final word, may I briefly say something about future referendums, and, forgive me, this is changing the subject a little bit. As a small piece of homework for this session, I tried to check what the commitments are of the major political parties in relation to future referendums and it is worth noting, I think, that all the political parties have given commitments to hold referendums on certain topics. Taking them in order and starting with the Labour Party, there are, in effect, commitments to future referendums already on the statute book in terms of Wales where the Government of Wales Act 2006 requires that there should be a referendum before primary legislative powers of a comprehensive kind are conferred on the National Assembly for Wales. In relation to Irish unification, there is a longstanding commitment, which I referred to, first enacted in the Northern Ireland Constitution Act of 1973. Also, there is provision at local level, which we have not discussed, for a referendum before any local authority decides to have a directly elected mayor, and that is in the Local Government Act 2000. In terms of future commitments, the Labour Party has a longstanding commitment that there will be no change to the voting system at Westminster without a national referendum, and that was in the 1997 manifesto, the 2001 manifesto and the 2005 manifesto. It has a longstanding commitment, which we have touched on, not to enter into the European single currency without a referendum, and it had a commitment not to ratify the proposed EU Constitutional Treaty, when it was still called a "Constitutional Treaty" before it became the "Lisbon Treaty". In terms of the Liberal Democrats, they too have commitments for a referendum before entering into the euro and for any change to the voting system, and they have a longstanding commitment that there should be a referendum before adopting a written constitution, which is longstanding Liberal policy. The Conservatives also have a commitment that we should not enter the Euro without a referendum, and that was first given by John Major in 1996, they have this new commitment to legislate, to pass a law requiring a national referendum before the UK should ratify any future EU Treaty, and they have a commitment in their policy documents on local government to try to hold, I assume they would be, simultaneous referendums in eight or ten major cities on elected mayors, and that is in a Conservative document of last year, 2009, called "Control Shift". In that same document, they have a pledge to give people the power to instigate referendums on local issues and, therefore, in effect, to open up the possibility of citizens' initiatives in local government, but we have not touched on local government yet in this session and you may not want to open that issue up now.

  Q20  Chairman: Well, Professor Butler and Professor Hazell, can I, on behalf of the Committee, thank you both very much indeed for being with us and for the evidence that you have given, and express the hope that we may keep in touch during the further course of this inquiry, if we may, to draw further on your wisdom? Thank you very much indeed.

  Professor Butler: Can I just say how nice it is to have been at a meeting where nobody has used the solecism of "referenda"!

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