Referendums in the United Kingdom - Constitution Committee Contents

Supplementary memorandum by Professor Graham Smith, Professor of Politics, University of Southampton

  Following the oral evidence I provided on 6 January 2010, I was invited to offer further reflections on a number of issues pertinent to the Committee's work.

What are the strengths and weaknesses of the referendum as a democratic and constitutional tool?

  The obvious strength of the referendum as a democratic device is that it provides citizens with exactly the same amount of political power in decision making on policy and constitutional measures. No other democratic innovation offers this degree of political equality and popular control. Where citizens also have the power of initiative they have equal power to set the political agenda. The potential of the referendum and other forms of direct legislation (eg initiative) to reshape the political division of labour between citizens and legislators should be given careful consideration given the level of public disaffection with the political process.

  As with any democratic institution, referendums and other forms of direct legislation have weaknesses, some of which can be mitigated to some degree by careful institutional design. Some of the most common criticisms of the practice of referendums include:

    Low and differential turnout. Turnout tends to be lower than national elections—and even lower in those polities that use forms of direct legislation regularly (40% in Switzerland; 35% in California). However, participation appears to be selective—citizens turn out in higher numbers for more controversial ballots. Participation also tends to be uneven across social groups: as Wolf Linder famously argues, "the choir of Swiss direct democracy sings in upper and middle-class tones". But this is a familiar problem for elections—it is not particular to referendums.

    Repressive impact on minorities. There appear to be relatively few propositions that have been successful in challenging minority rights. Recent research by Shaun Bowler and Todd Donovan suggests that in the US the success of repressive measures appears to be strongly correlated to factors such as community homogeneity, level of education and size of population (ie most prevalent at local level). They also point out that legislators can be equally as intolerant as citizens. We need to compare like with like. The potential for repressive propositions is also affected by the role of constitutional courts in the referendum process. In California the constitutional court can only intervene after a proposition has been passed; in Italy I believe the constitutional court can rule a proposition non-constitutional before it is put to a vote, thus offering increased protection to minorities.

    Extent to which citizens are informed. Critics of referendums suggest that citizens are not well-informed by the highly partisan debates that precede ballots and that money influences campaigns. Again emerging research from the US suggests that while citizens may not be fully informed, most use shortcuts to vote in line with their preferences: they use the judgements of trusted information sources (eg political parties, interest groups, media outlets, etc) to guide their decisions. However, to ensure as fair a process as possible, the strength of laws associated with (for example) truth-in-advertising and perjury is key, as well as a firm regulatory framework that includes limits on campaign spending, declarations of the sources of funding and independent provision of information. There is also growing interest in ensuring more structured opportunities for citizen engagement as part of the referendum process, in particular the idea of introducing "citizens' assemblies" that allow a small cross-section of the population to learn about the issue and to make recommendations. This would ensure that there was a further trusted information source that represented the considered judgements of citizens, rather than only the established views of interest groups. The most impressive example of a citizens' assembly to date is arguably the British Columbia Citizens' Assembly. In this case the Assembly was charged with deciding on whether there should be a referendum on electoral reform. Although the subsequent referendum was lost, those citizens who were aware of the BCCA, tended to follow its recommendations.

What are the arguments for and against the use of threshold requirements for referendums?

  The Committee will need to consider at least three different forms of threshold:

    — size of majority required to pass a referendum;

    — whether concurrent majorities should be required; and

    — the time and number of signatures required to initiate a proposition.

Overall majority

  The requirement for the size of a majority varies between political systems and type of referendum—usually 50%, but for constitutional issues occasionally 60%. The higher level clearly makes it more difficult to bring forward change and clearly gives an advantage to those supporting the status-quo, and so on democratic grounds is difficult to justify.

Concurrent majorities

  Rather than simply requiring a majority of votes, many referendums—in particular constitutional referendums—also require concurrent majorities, ie a requirement that the proposition is supported in more than half of the geographical areas that make up the polity. For example, in Switzerland, a constitutional referendum has a double majority provision: an amendment requires a majority of the votes cast nationally and a majority of votes in over half of the 23 cantons. For a UK-wide referendum, this might equate to half of the "regions" of the UK. Concurrent majorities ensure that a proposition has widespread support across a polity.

  Concurrent majorities tend to be geographic in nature, although there is no reason why such a requirement could not be based on other socio-demographic criteria. For example, one could consider requirements for majorities across different social groups where a proposition has potentially repressive impacts, thus offering further protection to minorities.

Proposition requirements

  If the Committee is considering the idea of some form of initiative—allowing citizens to bring forward propositions (whether this generates some form of parliamentary debate through to a popular vote)—then it is important to consider the relevant thresholds for the gathering of signatures: too low, then parliament will have to respond to many frivolous propositions that have little public support; too high and the public will quickly become disaffected. The number of signatures required and the time allowed to collect signatures varies across polities and types of direct legislation. In Switzerland, for example, a constitutional initiative requires signatures from 100,000 citizens (about 2% of the population) collected within 18 months, whereas a popular referendum requires only half the number of signatures, but collected in ninety days of a law's publication or an international treaty. Compare this to California, where an initiative requires a higher number of signatures to be collected in only 150 days.

  It is also possible to introduce concurrent thresholds into the signature gathering process: in Massachusetts no more than 25% of signatures can come from the densely populated and urban Boston area.

What would you identify as the most important components of a referendum campaign? What issues need to be borne in mind in order to ensure the effective operation of a referendum campaign?

  As I have already stated, the strength of laws associated with (for example) truth-in-advertising and perjury is fundamentally important to ensure a degree of fairness. The specific regulatory framework for referendums needs to ensure limits on campaign spending, declarations of the sources of funding and independent provision of information (this could be a role for the Electoral Commission).

  Again, consideration should also be given to promoting structured engagement opportunities for citizens, in particular the type of citizens' assembly that was utilised in British Columbia in 2004 to consider the issue of electoral reform.

Does the Electoral Commission have an appropriate role in relation to referendums? How would you assess the work it has undertaken in this field?

  Two areas where the Electoral Commission's role needs to be reconsidered are in relation to the referendum question and provision of information. While the Commission is charged with publishing a statement on the intelligibility of any question, the relevant Secretary of State is not required to rephrase the question if the Commission believes that it is unfair or unintelligible. Arguably the balance of power needs to be reconsidered so that the Commission can override the Secretary of State to ensure fairness and intelligibility.

  Additionally, the Electoral Commission could be charged with producing an accessible information booklet that presents the arguments for and against the proposition. Citizens would then have a reliable source of information providing an overview of the issues at stake. Independent agencies in other polities are charged with such a function.

  Given that there have been no referendums since the Political Parties, Elections and Referendums Act, it is impossible to assess the work of the Commission in this area.

  For the sake of brevity, I have not referenced all the studies on which this evidence is based. More details can be found in chapter 4 of my book Democratic Innovations (Cambridge University Press, 2009).

1 February 2010

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