Referendums in the United Kingdom - Constitution Committee Contents

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: You may find the respected Democratic Audit of Australia's comments helpful:

  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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