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
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 sovereigntya key term,
of course, in the UKcompatible 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
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
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 itnow I
am choosing my words particularly carefullyis to suggest
that constitutions are essentially about rules and rights which
have generality, in other words they are not confined to specific
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 CIRcitizens' initiative and referendumwhere
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 themand this is where the pragmatic
self-serving, as it were, political side of it perhaps comes back
into the pictureif 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 asI do not know if I am reading this into your thoughtspotentially
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 arguableGraham
and I might disagree slightly on this, I am not surethat
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
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 meI
am not an expert on the detail of thisa 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 authoritywould
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
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 referendumsthis
may be a point of disagreement, I do not knowit 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
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 referendumI
will cut to the chase on thisI 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.