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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