Referendums in the United Kingdom - Constitution Committee Contents

Examination of Witnesses (Questions 21-38)

Professor Michael Saward and Professor Graham Smith

6 JANUARY 2010

  Q21  Chairman: My Lords, can I welcome on your behalf Professor Saward and Professor Smith to the Committee? We are being broadcast, so may I ask you, if you would be so kind, to identify yourselves formally for the record and then, if you wish to make a brief opening statement, please do so, otherwise we will go straight into questions.

  Professor Saward: I am Michael Saward. I am a Professor of Politics at the Open University and prior to that at Royal Holloway, University of London. I am mostly a democratic theorist and that does not mean I do not know about the real world of referendums, but I have written a number of books and articles on democracy which deal with issues of direct democracy and referendums in principle as much as in practice.

  Professor Smith: My name is Graham Smith. I am a Professor of Politics at the University of Southampton. Again, I do a lot of work on innovations in democratic practice, mixing empirical and theoretical material.

  Q22  Chairman: Could I begin by asking what you think the key constitutional issues, as opposed to technical or legislative issues, are that we should be addressing in the inquiry that we are starting today? What are the key constitutional issues, in your perception?

  Professor Saward: In a sense, the question could be understood in two interestingly different ways. One is whether constitutional issues are the only or the prior issues that might be considered the subject of future referendums, a topic that dominated the conversation that has just occurred, and the other is the constitutional provisions which might exist for future referendums, and it seems to me that they are quite interestingly related, but quite separate questions. On the first one very briefly, clearly constitutional issues, which I think can be defined (if you want me to come back to that, we can do so, it is tricky, but it can be done), are the prime, but not the only candidates if you were looking for a consistent and legally established procedure by which future referendums might be held. Particularly difficult and cross-party ethical and moral issues are a second category. Major party or manifesto policy commitments may be more controversial, the third category, and a fourth one, it seems to me, might be initiated issues if something like a form of citizens' initiative were in place. They are on a kind of sliding scale of controversial nature, I suspect, and, as I suggest, I think those issues can be defined. On the different question of which constitutional issues need to be considered, it seems to me you can boil that down to the question: would this Committee be interested in ultimately concluding or recommending that referendums, perhaps not just for constitutional issues, were a good way to advance the state of UK democracy into the future? It could be the case, it could be argued, that the UK is behind not just Switzerland, the obvious case, but Denmark, the Netherlands, the US in terms of the states and many others in terms of the depth of its democratic practice, and there could be a case here not for saying that governments pragmatically decide when it suits them to hold referendums, but to take this legally out of the hands of political parties or government managers and put it on a more consistent and more independent basis. That would seem to me to be the, as it were, master constitutional issue. Behind that is the suggestion that the UK Constitution does not just evolve and there is not just, as it were, constitutional case-law that evolves, but there are positive decisions that could be made about the shaping of future provision for referendums more generally and consistently.

  Professor Smith: I have not got much more to add to that actually. I would agree with Mike that the primary focus on constitutional issues is key and particularly those issues which would affect the practices of Parliament itself. There is always a worry that Parliament makes decisions about its own practice, and I am thinking here about electoral systems and those sorts of changes. I think those areas which, if you like, constitute the House itself can be problematic if left to politicians who obviously have particular interests. So anything that changes the dynamic and the relationship between the people and those who are elected, I think, are absolutely crucial issues for referendums. Also, I agree with Mike that it depends what you mean by "referendums". "Referendums" is often used as an overarching term to include things like popular referendums and initiatives, and wrongly in some ways. But much does depend upon what the scope of your interest is. If you are just talking about the kinds of referendums that we have held in this country, then we just carry on pretty much the way we have been doing things. If you are looking at trying to change that division of labour between citizens and the elected politicians and others, then you are going to have to really think through quite carefully the implications for the constitutional arrangements.

  Q23  Lord Shaw of Northstead: If we look at this, basically is a referendum really compatible with the UK system of parliamentary democracy? If it is, and obviously yes, of course it is, in what ways would a referendum be used as part of such a system? For example, could parliamentary procedure be evolved in such a way that, after the processes of Parliament have been produced and carried out, the final decision should be left to some form of referendum?

  Professor Saward: As you predict, my answer would be there is no incompatibility. Language matters here. If the question is, is parliamentary sovereignty—a key term, of course, in the UK—compatible with direct democracy, the answer you are more likely to get is "no", but you mention parliamentary democracy and, putting it at its most general, the way to deepen democracy is to make it more direct, to bring people into more decisions as a matter of principle. The clearest institutional way in which to render the compatibility is to place parliamentary debates and, indeed, political parties at the core of a referendums initiating and campaigning process. The US states, for example, often get into difficulty and worry keenly about the bypassing of legislative processes by initiative and referendum rules and the ways in which those are practised. There is absolutely nothing that is not avoidable about that. It would be difficult to conceive in the UK of a consistent and legal basis for referendums in the future which did not put parliamentary debates at their core, which did not conduct key referendum votes once Parliament had done its work which gave Parliament and, indeed, parties the key role in the conduct of referendum campaigns. This would be quite compatible with practice in a number of the smaller European democracies. There are different rules, hugely varied rules, but neither in the case of Parliament nor any other case I can think of is there any necessary incompatibility between parliamentary representation, indeed representative democracy more generally, and this particular form of practice of direct democracy. Can I add one rider to that? There is a lot of representation going on in any form of direct democracy, above all referendums. The 2000 Act, which was part of the conversation you just had, as Professor Hazell pointed out, talks about umbrella groups which may receive a certain amount of public funding. These are representative groups; they are just different sorts of representatives. Representative politics, as it were, in a more complex way runs right through any referendum campaign.

  Professor Smith: I have a terrible feeling that I am going to spend most of this session saying, "I agree with what Michael just said".

  Professor Saward: Disagree with me!

  Professor Smith: I will try and think of something to disagree with. As now structured there are no problems at all because we have a system for running referendums that is compatible. Of course, Switzerland still has a parliament and a representative democracy, it just extends the scope of citizen participation. Countries which make more use of popular votes still have parliaments, still have legislatures, they do not disappear, it is just that they rearrange the constitutional furniture.

  Q24  Baroness Quin: On the international examples, are there examples that either of you would commend to us in terms of countries which have seemingly clear and good rules about when and how referendums should be held? Similarly, are there ones that you feel are bad examples of referendums?

  Professor Smith: I think it is incredibly difficult because the constitutional arrangements are so different between countries. It depends where the direction of travel is. If it is towards some of the things that Michael was alluding to, the idea that there might be opportunities for citizens to initiate, then of course there is an enormous difference between going to California or Switzerland. They do things completely differently and, therefore, it has a massive effect on the way that politics occurs in those places. One example of a process that I found particularly interesting is in British Columbia. That is helpful because Canada is a Westminster-style polity and they do not use referendums that often at state level. The executive decided that they needed to review the electoral system and that it should not be left in the hands of politicians to decide what the referendum question should be; so they established a year long Citizens' Assembly of 160 randomly selected citizens who then learnt about electoral issues and put forward a proposal which then went to a referendum. I quite like that idea of, "Oh, yes, we have a political problem, we need to change the electoral system", but then saying, "and it's not necessarily the politicians who should decide what the choice is, we are going to hand that over to a different body". It is those sorts of examples that one should look at: the imaginative mixing of a referendum with other democratic innovations. Very often when we think about things like referendum campaigns we are very much focused on the "yes" and the "no" sides, but why are we not thinking about how we might promote structured debate within society as a whole? I think the British Columbia example is interesting because it is so different.

  Q25  Baroness Quin: On the Californian example, which you also mentioned, can I ask what each of you think of that as a practical example of a citizens' initiative? I understand that for good or bad it has only left about a quarter of the state's budget under the control of elected representatives. Is that a good thing or not? What do you feel about this?

  Professor Smith: I think California is at the extreme end. It is interesting when you look at what happens in Switzerland because in California successful propositions go straight to a vote bypassing the legislature completely but in Switzerland there is a period of reflection by the legislature itself, bringing in the proponents just to see whether they can find agreement. Popular vote happens if agreement is not found. One of those polities tends to swing a lot and the other is quite stable. There are some problems with the way the Californian system is structured, I must admit, but there are some pretty poor legislatures as well which make bad fiscal decisions. Let us compare like with like.

  Q26  Chairman: Can I ask a brief supplementary to your previous question, Lord Shaw, when Professor Saward said that he could define "constitutional issues", which should trigger a referendum? I wonder if the Professor would like to elaborate on what such "constitutional issues" would be?

  Professor Saward: I think what I said was that it is possible to define it. It would be possible for this Committee to think very carefully about how to define it. In principle it is definable. The place I would start to define it—now I am choosing my words particularly carefully—is to suggest that constitutions are essentially about rules and rights which have generality, in other words they are not confined to specific policy domains.

  Q27  Lord Norton of Louth: I remember we had these very good debates when the 2000 Bill was going through and there was a proposal that there should be referendums on constitutional issues when we raised the problem of how to define it. It was then refined to issues of first class constitutional significance, and then the question was what was the difference between second class and first class. Even if you take your definition, you lead to what you might call practical problems because some of those could be low-level rules where you might put it to a referendum and nobody bothers to vote. How do we refine it in a way where we have got a definition that, if you like, is operational or could be operational in terms of an actual referendum?

  Professor Saward: To take one step back, the role of this Committee could well be to come up with a stipulative definition of precisely that with a number of riders and a number of those riders could be illustrative examples of what would fall within that category. You mentioned the work around the 2000 Act and you may well have done that kind of work in some detail then, but it seems to me that that particular question cannot be advanced unless there is a strong stipulative definition either to agree with or partially or wholly argue against. I do not mean to duck the question at all; I am not a legal scholar so I am a little bit careful with the question. This is an enormous opportunity for this Committee to put something up about where the boundaries of such issues may reasonably be thought to lie and see what reasonable or other objections or amendments to those others may put forward.

  Q28  Lord Shaw of Northstead: Dealing with the question of who initiates a referendum, the inference has been that, in fact, governments initiate them very often when they are in an awkward spot and do not want to take the decision themselves. It has come up that there were instances of other people initiating them. How, in fact, would that work in this country? To me it seems appalling if Parliament was to be bypassed in a way by the setting up of another authority, possibly with a committee and so on, with debates ensuing and all the rest of it, to decide as to whether or not there should be a referendum. That surely is not being suggested by anybody, is it?

  Professor Saward: I am not so sure. Not many weeks ago in a speech at my university David Cameron talked a good deal about the citizens' initiative. He may well have intended that to be around local government issues, but it seemed to me he left the door a little open on that as to whether it might involve national issues. In direct response, citizens' initiative, sometimes CIR—citizens' initiative and referendum—where it is used around the world uses different threshold requirements, so a certain percentage of the electorate, for example, or a certain specified number (hundreds or thousands, whatever it may be), of signatures on the appropriate form gathered in the appropriate way need to be provided.

  Professor Smith: In the appropriate time.

  Professor Saward: In the appropriate time under specific legal rules to trigger a vote. On the second part, and this goes right back to the core issue, does it not, bypass or undermine existing institutions of representative government—

  Q29  Lord Shaw of Northstead: Yes.

  Professor Saward: —there is no reason in principle, and I know that is often a phrase used to escape an issue, why an initiative may not initiate or trigger under a set pattern of law a parliamentary debate prior to, or perhaps even instead of or in conjunction with in some way, a popular vote in the form of a referendum. In other words, there is nothing about the institution of the citizens' initiative which necessarily says it cannot be used in conjunction with or to prompt or to help set the agenda of parliamentary procedures.

  Professor Smith: In answer to your question that no-one is surely suggesting this, lots of people are suggesting it. But currently it is mostly being suggested for local government.

  Q30  Lord Shaw of Northstead: You talked about somebody in the public initiating this.

  Professor Smith: Yes, that is right. Not somebody, a lot of people.

  Q31  Lord Shaw of Northstead: Even so, that should siphon through to somebody in Parliament doing it, should it not?

  Professor Smith: Not in all systems.

  Q32  Lord Shaw of Northstead: I want to deal with our system.

  Professor Smith: In our system we do not have anything like it so we will be making the rules up as we go along in that sense.

  Q33  Lord Shaw of Northstead: Would you recommend it?

  Professor Smith: I would be one of those people you probably would not be very pleased with. I would recommend that you had something that allowed the citizens to initiate and I would probably go along with Michael that what it initiates is another question. It could initiate debates within the House, but one of the problems with those sorts of initiatives is they often get lost in a committee somewhere. The danger here is that people are looking for democratic innovations, democratic change that will be meaningful, and then they get cold feet and say, "Well, we are going to have a form of initiative but it will only generate a debate in a select committee" or something similar. Then often it becomes a worthless piece of institutional architecture. You have got to think quite carefully about how far you want to go and why you are going there. There is widespread criticism of the current political culture in this country that there are not the opportunities for citizens to participate in politics. The citizens' initiative is surely one of the options available for realising that possibility of meaningful participation.

  Professor Saward: Just one quick rider to that. The Swiss situation is highly distinctive in many ways and if there is a form of direct democracy it is being practised almost certainly in some form in Switzerland. It is interesting that the initiative process in Switzerland is dominated by the mainstream political parties. This has been suggested not least by Ian Budge, author of a key book about the potential for referendums and initiatives in the UK, who has suggested that especially minority parties in Parliament, but not only them—and this is where the pragmatic self-serving, as it were, political side of it perhaps comes back into the picture—if there is an initiative and referendum process in place they will attempt to use it. For example, if a minority party in a legislature feels that its issue is not going to get the airing it wants on the floor of the House then it may well want to use the initiative and referendum process to trigger a debate even if it does not actually trigger a referendum. The parties are absolutely crucial as to which issues are discussed. The Swiss case is distinctive, but not so distinctive that it is well outside the possibilities for the UK on this topic. In answer to your question of who initiates, often it will be established political party figures, parties themselves officially, as it were, minor parties wishing to have an impact on the agenda as well as—I do not know if I am reading this into your thoughts—potentially rogue figures from outside the political system.

  Q34  Lord Shaw of Northstead: Say it is a powerful body within the Parliament, the point is that Parliament is governed by the Government and they have the majority. I was imagining that you thought there would be another authority outside which would decide "That is the subject of a referendum and it ought to take place and then the Government has to follow by carrying out the proceedings".

  Professor Saward: It seems to me the strengths of the referendum for the UK, and arguably elsewhere, are strengths of conjunction. In other words, how they work in conjunction with established democratic institutions. The weaknesses, and this is as true of the initiative as of a referendum, are weaknesses of isolation, whether they are practised here or elsewhere: are they compatible with what we do already, compatible with existing core democratic institutions, above all Parliament? This is a good example of where that principle and fact kicks in. It would not be impossible, and many of the Americans have done it to construct the system that you are concerned about whereby the legislature effectively does get bypassed by a certain kind of initiative process, but that is optional and it is arguable—Graham and I might disagree slightly on this, I am not sure—that in the case of UK constitutional tradition it would not make sense. I would argue it would not make sense to construct a system which would threaten to bypass parliamentary debate or procedure.

  Professor Smith: I think it is highly unlikely to happen. What I see as the best arrangement for a democratic polity is not where we are now and I agree with Michael that we are unlikely to see that kind of initiative emerge any time soon. Interestingly, both parties are playing with this idea at local government level. Apparently at local government level we can mess around as much as we like, but in national politics that cannot challenge parliamentary sovereignty. Local government is not your concern but it is an interesting development.

  Q35  Baroness Quin: Earlier on, and I think you were listening to the earlier session that we had, Professor Butler seemed to be saying that he saw referendums essentially as a political device rather than as a sort of point of constitutional principle. I do not want to distort what he said. Can I take it that each of you think that there should be actual rules about the role that referendums should play in our society and the circumstances in which they should be called.

  Professor Saward: Yes, that is certainly how I feel. Your legal adviser would know much better than I, but presumably a very interesting particular type of Act of Parliament could bring about a principled and consistent basis on which referendum, and perhaps initiative and referendum, could be established for the UK. Professor Butler is a very eminent expert on these issues and had been very much involved as an expert, and in some ways as an expert participant, in the key referendums, for example the ones in the 1970s, that the conversation was on earlier. The experience of the past is absolutely relevant. The experience of the past is that the referendum has been a political tool which has been used or seen as something that could be used pragmatically by parties and party leaders in often sticky political positions. That remains an interesting and germane fact to these conversations but it does not get away from the point that, yes, you could have a consistent, more principled legally established basis for the referendum.

  Professor Smith: As the Referendum Act exists at the moment referendums can be nothing more than a political tool for government. Just read the legislation: it requires other Acts of Parliament in order for it to be activated. I would prefer to see something like a constitutional referendum where there were certain issues where a referendum was required and we can debate which ones. That was something we were discussing earlier: what those issues should be. One of the problems here is that the referendum is left in the hands of the Government. I think that is a problem if government can either ignore or bring in a referendum as and when it suits its purpose. It is not a misuse of the referendum because that is a power available to the Government, but it is not the only way to use a referendum.

  Q36  Baroness Quin: Do you have any thoughts about the types of questions and issues that referendums should cover within the constitutional umbrella? I am going back to what I was asking earlier in a way. It seems to me that one of the traditional values of representative democracy is that representatives are elected to carry out detailed scrutiny work of treaties, or whatever it is, and submitting something like the Lisbon Treaty to the public is almost against that kind of principle because you are talking about such a complicated, long document. It is not that people are incapable of understanding it, not at all, but what is representative democracy about if it is not about electing people to carry out that kind of detailed scrutiny work on behalf of the electorate.

  Professor Saward: There are two or three really key issues in there. One is the issue of complexity and this is very important. There is a view that there are some issues that are technically, or constitutionally, so complex that they cannot be boiled down to a simple "yes" or "no" option. This is putting it too simply, but we are short of time. I would say that is not the case. There is not an issue where you could not locate something very like a "yes" or "no" principle at the core of it. That is an answer to one issue in there. The Australians have recently revisited the public information aspect of the way referendums are conducted nationally in Australia. A Parliamentary Committee felt, not least in the light of new communications technology, that what they have done so far has been strongly inadequate. They are looking at YouTube and Twitter for providing public information, and at levels of funding for public information around specific referendum campaigns. They felt they had not got that right, in spite of, it seems to me—I am not an expert on the detail of this—a good deal of attention in Australia given to how the public has been informed. Complexity, yes, but can it be boiled down to a matter of principle? I would say yes almost all the time. Public information processes need to be adequate to the task of complex issues and, yes, absolutely there is a lot of creative work to be done there, it seems to me. I feel a bit inadequate on this question. It was the one we were discussing earlier, in a sense, on how do you define the boundaries of what is a constitutional issue, for example, and what is not. I am not sure I can provide more that is helpful. Again, a stipulative definition would be helpful. I would start with things like rules and rights and their generality, rules and rights that are not exclusively applicable to any given policy area, such as health, education, environment and so on. Any significant shift in the formal location of political authority—would need to be at the core of it. Lord Norton, from the comments a moment ago, I suspect you have probably been through all of these options and others in the context of the work a few years ago. Again, there is no such neutral definition out there. Is that a blockage or is that something interesting? No, that is an opportunity, for example, for this Committee to press what it would want to stipulate.

  Q37  Lord Norton of Louth: I have two points that are not particularly related. Just on this point about principle, you say you could resolve it in terms of a "yes/no" vote on an issue and boil it down to a principle where you could argue "yes/no". Is there not a problem though that there may be other principles which people could agree to which then conflict with the principle that is being put? For example, if you had a referendum on "Should we protect privacy, have a privacy law?" there is a good chance people may vote "yes" rather than "no", but if you had a separate referendum on "Should the freedom of the press be protected?" you would probably get a "yes" vote and you have then got the problem of resolving those two. The problem is you might just have a referendum on one and not the other, so there is that issue of principle. The question I was going to ask about process is very different and relates to what you were saying at the beginning. There is what do you hold a referendum on, but then there is the process by which you hold the referendum, and you were saying that we ought to think about rules that should govern it. Taking the point about the 2000 Act not being a generic referendums Act providing necessarily the rules and procedures, from a procedural point of view is there anything that is obviously missing that you would recommend in substantive terms, for example should there be a threshold requirement or anything of that sort?

  Professor Smith: There is an interesting issue about the referendum question in the existing Act. The Electoral Commission is consulted, but it is not clear what happens if the Commission thinks it is a very poor question. It could send it back to the Secretary of State and the Secretary of State could say, "The Electoral Commission thinks it is a very poor question, let's carry on with my very poor question". He could still do that. There needs to be something in there about ensuring that the question is fair and that needs to be done independently. That has not been resolved adequately. Again, that is something about taking the power away from a Secretary of State. That was one thing that struck me about current legislation.

  Q38  Lord Norton of Louth: The original draft of the Bill did not even have a requirement to consult the Electoral Commission; it was only because I moved an amendment.

  Professor Smith: I was glad to see it was there. In terms of thresholds, Michael had more to say about this. I do not think you can stipulate a general threshold for all referendums—this may be a point of disagreement, I do not know—it depends on the type of issue. Just to go back to a slightly earlier question: if we are going to have, for example, two different types of referendums, one that is a constitutional referendum where if the Government wants to make a constitutional change, a referendum has to occur, then we might think about thresholds because they are going to be questions of a fundamental type; but if it is the more occasional government-sponsored referendum, and I imagine both types would still exist, after all we are not suddenly going to move to constitutional referendums only, then thresholds would be more issue-specific. Deciding on a 50% or 60% threshold is a difficult judgment to make. Certainly concurrent majorities make some sense. There would be a concern, for example, in this country if a referendum went through and it was the South East only that voted en bloc. We might have to have some sort of regional concurrent majorities. That would be my sense of it, but I would have to do more thinking about that.

  Professor Saward: I would be happy to say something on the threshold. It seems to me that the question of the threshold can be understood in two quite separate ways: in terms of turnout and in terms of voter percentage. In terms of specifying the percentage of the vote, say 60% for the sake of argument before a "yes" vote beats a "no" vote in a given referendum—I will cut to the chase on this—I think such stipulations are undemocratic in principle. They bias the option that favours the status quo over the option for change, they render votes in the referendum unequal, whereas one vote, one person, one value is fundamental to any democratic practice. They are the two main reasons. However, I think it is much more defensible on grounds that I do not have time to spell out, but on democratic grounds, to have turnout thresholds: for the sake of argument you need at least 50% of the electorate, not setting aside Professor Butler's concern about the Electoral Roll. Different countries do this in different ways, but I would suggest as a guide somewhere between 50 per cent of the electorate and the possibly higher figure of the turnout in the previous General Election would be roughly the kind of figure that often gets cited in debates and could be the one to play with. You would not want to set those thresholds too high as to render the referendum process theoretical rather than practical. It seems to me that they are the core issues.

  Chairman: Professor Saward and Professor Smith, can I thank you both very much on behalf of the Committee for joining us on this wintry day and for the evidence that has given us an enormous amount to think about. Thank you very much indeed.

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