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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