Supplementary letter from Professor Michael
Saward, Professor of Politics, Open University
You asked for further comment on how constitutional
issues might best be defined, and on recent recommended changes
to the conduct of referendum campaigns in Australia.
The extensive recent report from the Australian
Parliament to which I referred can be found at: http://www.aph.gov.au/house/committee/laca/referendums/report.htm.
You may find the respected Democratic Audit of Australia's comments
helpful: http://democraticaudit.org.au/.
Defining or distinguishing "constitutional"
issues is difficult, perhaps especially in the UK. Nevertheless,
it is realistic to aspire to a workable definition.
A key premise is that there is no neutral definition
available. Defining constitutional issues is a political as well
as a legal art. But I suggest that the appropriate guiding principle
is that changes that would likely result in significant, encompassing
and lasting change in the formal and general rules and rights
which locate political authority should be thought of as constitutional.
Generality matters because constitutional issues are not policy-specific—they
do not pertain only to education policy for example. Lasting change
matters because it is persistent or long-term changes that are
most significant. Encompassing change is that which applies to
all within the relevant political community—the whole UK
in the case of a UK-wide change in the number of MPs, for example,
or all of Wales for a significant shift in the nature and extent
of the Welsh Assembly's powers. Rules and rights for the location
of political authority go to the heart of who holds the democratic
authority to decide for whom, and how participation and accountability
operate.
Pragmatically, many politicians and commentators
in the UK share views as to what is a constitutional issue, views
that can be brought into focus by using such a guiding principle.
Changes in the electoral system, major changes to devolution,
adoption of a new constitutional settlement for the EU, or changes
to the number of MPs, for example, are widely accepted as constitutional
issues. The Committee might seriously consider listing a set of
such issues under an appropriate guiding principle. A pragmatically
illustrated definition from the Committee, along these lines,
may begin to generate consensus. Using specific examples of constitutional
change would in turn prompt critics to be specific; they would
need to say what cases they would include or exclude according
to the guiding principles. In this way, the Committee may help
to prompt clear, focused debate.
Clearly, any such definition would require interpretation;
if referendums were to be a formal part of the UK constitutional
landscape then a parliamentary committee—as opposed to the
Government or an independent body—would need to interpret
it in specific cases.
I would like to comment briefly on the overall
strengths and weaknesses of the referendum as a democratic and
constitutional tool, expanding slightly on my oral evidence.
The strengths of the referendum as a constitutional
tool are strengths of conjunction and consistency. Its strengths
in the UK would rest on its conjunction with other potential constitutional
developments (e.g. clarification of the future of the House of
Lords, or the potential adoption of such innovations as the citizens'
initiative). They would also rest in conjunction with other institutions'
roles (Parliament of course, but also political parties and local
government). Enhancing the role of the referendum in the UK in
conjunction with other institutions and developments may be seen
as enhancing representative and parliamentary democracy.
By contrast, the constitutional weaknesses of
the referendum are weaknesses of isolation and inconsistency.
Where there is no firm legal basis for referendums and no clear
or consistent constitutional relationship with parliamentary procedure,
for example, the use of the referendum may be subject to manipulation
and controversy.
In conclusion, my considered view is that there
is a strong case in the UK for referendums on constitutional changes
with turnout thresholds. There is also a case for rejective policy
referendums (with turnout thresholds) based on either or both
(a) major government policy commitments, and (b) products of high-threshold
citizens' initiatives. In either case, Parliament should vote
prior to a popular referendum. There is a strong case for even
greater use of the initiative and referendum at local government
level.
1 February 2010
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