Memorandum by Professor Vernon Bogdanor,
Professor of Government, Brasenose College, University of Oxford
1. THE REFERENDUM
Almost all democracies employ the referendum.
Amongst countries which have been continuously democratic since
the 1940s, only Germany, India, Israel, Japan and the United States
have not used referendums at national level.
But the referendum is not addictive. Switzerland,
which holds on average around one national referendum a year,
is very much the exception to the general rule. Indeed, Switzerland
has held around half of all of the national referendums that have
Australia and Italy are the only other democracies to have used
referendums at national level at all frequently. No other democracy
has held more than 45 nationwide referendums. The typical
democracy, like Britain, holds referendums but very infrequently.
The dichotomy between "representative"
and "direct" democracy is, therefore, highly misleading.
For the referendum, even in Switzerland, is used not to replace,
but to supplement representative democracy. There is little danger
that it will come to subvert parliamentary government.
Referendums are used primarily to resolve constitutional
issues. For fundamental changes, so it is argued, ought not to
be implemented without the consent of the people. They should
not be implemented simply at the will of the government of the
day. If they are to secure legitimacy, they need the endorsement
of the people as well as that of the legislature.
Britain, of course, lacks a codified constitution.
This means that there are no legal rules requiring a government
to hold a referendum on particular issues. And no definition of
what is to count as a "constitutional" issue. The referendums
that have been held or promised have been decided upon by the
government of the day at its discretion. An elastic constitution,
so it seems, implies an elastic use of the referendum. But this
gives rise to a problem. For the referendum, in countries with
a codified constitution, is intended to constrain the government
of the day. In Britain, by contrast, if use of the referendum
lies at the discretion of government, it can be used to augment
the power of government rather than limiting it, by allowing a
government to bring the people into play against Parliament. That
was perhaps the case with the devolution referendums. The referendum
could then become a tactical device, "the Pontius Pilate"
of British politics.
In fact, however, conventions have grown up
as to when the referendum ought to be used. These conventions,
though in no sense legally binding, may serve to act as precedents
constraining future governments.
The examples of the devolution referendums in
1979 and 1997 in the non-English parts of the United
Kingdom, together with the referendum on regional devolution in
the north-east in 2004, would seem to imply that a referendum
needs to be held before there is any significant devolution of
powers away from Westminster.
The 1973 border poll in Northern Ireland,
together with the commitment, first made in the Northern Ireland
Constitution Act of 1973, and reiterated, most recently, in the
1998 Belfast Agreement, would seem to indicate that a referendum
should be held in the area concerned before any part of the United
Kingdom is allowed to secede. It seems generally agreed that,
even were the SNP to win a majority of Scottish constituencies
in either Westminster or Holyrood, a referendum would be held
before independence would be conceded.
The examples of the European Community referendum
of 1975 and the referendum in London in 1998, seeking approval
for the first directly elected mayor in British history, together
with the promises to hold a referendum before joining the eurozone
or changing the electoral system for elections to the House of
Commons, would seem to show that a referendum is required when
a wholly novel constitutional arrangement is proposed.
The referendum, then, is used not on bills which
propose changes, however radical, in the laws, but for legislative
proposals which provide for a radical alteration in the machinery
by which the laws are made. The rationale for this requirement
lies deep in liberal thought and was well stated by John Locke
in his Second Treatise of Government, para. 141. "The
Legislative cannot transfer the power of making laws to any other
hands. For it being but a delegated power from the People, they
who have it cannot pass it to others". Voters entrust their
power to representatives, but they give them no authority to transfer
those powers, to make radical alterations in the machinery by
which laws are made. Such authority can be obtained only through
a specific mandate, that is a referendum.
Locke's doctrine would seem to imply that a
referendum is required, not only when power is transferred downwards,
as with devolution, but also when it is transferred upwards to
the European Union. However, there has not been a referendum on
any of the five amending treaties to the Treaty of Romethe
Single European Act of 1986, which involved a very wide transfer
of powers, the Maastricht treaty of 1992, the Amsterdam treaty
of 1997, the Nice treaty of 2000, nor the Lisbon treaty of 2007.
The promise of a referendum on the now defunct European constitution
but not on the Lisbon treaty could perhaps be defended on the
grounds that the former was a wholly new constitution for the
European Union, while the Lisbon treaty was a mere amending treaty
like the Single European Act and succeeding amending treaties.
Significantly, while nine member states, including Britain, either
held referendums or were proposing to do so on the constitution,
only Ireland held one on the Lisbon treaty, and that because she
was required by her constitution to do so.
Nevertheless, by analogy with the referendums
on devolution, there does seem a strong case in logic for arguing
that there should be a referendum before major legislative powers
are transferred upwards to the EU as well as downwards to devolved
bodies. Were that doctrine to be accepted, it would have made
for referendums on the Single European Act and Maastricht, but
perhaps not on the Amsterdam, Nice or Lisbon treaties, none of
which involved major transfers of powersmoreover, the Lisbon
treaty provided for opt-outs for the United Kingdom for many,
though not all, of the transfers. But there is of course much
room for argument as to which transfers of power are "major"
and which are not.
There are, then, persuasive precedents and these
may in the future come to constrain governments. But, even if
they do, national referendums are likely to be held only very
Might it be possible to go further in making
the referendum a weapon of retrenchment, as early advocates of
it such as Dicey hoped that it would be? One possible way of entrenching
legislation might be to suggest that any future amendment or repeal
of a particular statute e.g. the Scotland Act, should require
a referendum. It would be natural to apply such a provision to
legislation of fundamental constitutional importance such as devolution
or the Human Rights Act. It might, for example, have been provided
that the devolved bodies in Scotland, Wales and Northern Ireland,
which were established after referendums, could not be repealed
without a referendum. Upon one interpretation of parliamentary
sovereignty, this could not be done, since Parliament could simply
ignore the referendum requirement and abolish the devolved bodies
without any recourse to the people. The decision of one Parliament
cannot, it might be argued, bind a later Parliament. Nothing can
prevent later legislation from repealing earlier legislation.
But it could be argued that the referendum requirement could be
made a condition of a bill purporting to abolish a devolved body
receiving the Royal Assent. The referendum requirement would then
redefine what was to count as valid legislation on a particular
topic. The Parliament Acts of 1911 and 1949 redefined
what was to count as valid legislation, by providing that a money
bill could be passed without the consent of the House of Lords,
and that a non-money bill could be passed without the consent
of the House of Lords, provided that the same bill had been passed
by the House of Commons in two successive sessions. From this
perspective, the referendum requirement would be doing nothing
more than laying down a further rule for what was to count as
valid legislation. There seems no reason in principle why such
a requirement should not be possible.
2. BINDING REFERENDUMS?
In countries with codified constitutions, the
outcome of a referendum generally binds both parliament and government.
In Britain, however, with an uncodified constitution, the position
is much less clear. For, although neither Parliament nor government
can be legally bound by a referendum result, the government could
agree in advance that it would respect the result, while a clear
majority on a reasonably high turnout would leave Parliament with
little option in practice other than to endorse the decision of
the people. Shortly before the European Community referendum in
1975, Edward Short, the Leader of the House of Commons insisted
to the House that "This referendum is wholly consistent with
parliamentary sovereignty. The Government will be bound by its
result, but Parliament, of course, cannot be bound". He then
added, "Although one would not expect honourable members
to go against the wishes of the people, they will remain free
to do so".
Presumably Short meant that the government would be morally bound.
It seemed then that it could not be legally bound. For it seemed
then as if the British constitution knew nothing of the people.
It is worth asking, however, whether a referendum
could be mandatory rather than advisory, or whether the people
must be held to have irretrievably delegated the authority to
legislate to their elected representatives in the House of Commons.
In 1653, Oliver Cromwell's Instrument of Government declared that
legislative power resided in the person of the Lord Protector
"and the people". Such a doctrine, however, does not
seem to have survived the fall of Cromwell. Yet there seems no
reason in principle, despite the doctrine of the sovereignty of
Parliament, why a referendum result should not be mandatory in
the sense that legislation passed by Parliament would automatically
come into effect if there were a vote in favour, and automatically
be rejected if there were a vote against.
There is a precedent, perhaps not of very great
significance, seeming to show that a mandatory referendum is not
incompatible with the British constitution. When the Callaghan
government, in February 1977, produced its referendum amendment
to the Scotland and Wales bill, the New Clause 40 originally
provided for a mandatory referendum. The clause originally declared
that "If the decisions in the referendum are that no effect
is to be given to the provisions of this Act, this Act ... shall
not take effect".
Were the referendum outcome to be favourable, the government would
have been under a legal duty to bring forward a commencement order
so that the devolved bodies could be established, although Parliament
would still enjoy the purely theoretical right to reject the commencement
order. The government, however, changed its view during the course
of the debate, and decided that the referendum should be advisory
and not mandatory. It seems, nevertheless, that it might be perfectly
possible to frame a referendum provision by which legislation
was required to come into effect with a "Yes" vote,
and required to be repealed with a "No" vote, in other
words, a mandatory referendum. Whether it is desirable to provide
for a mandatory referendum is, however, another matter. The next
section provides arguments to show that it would not.
A threshold can be in the form either of a minimum
turnout level or a minimum percentage of the registered electorate.
There are strong arguments against thresholds. It is difficult
to be precise on what constitutes a sufficient turnout or a sufficient
majority. Suppose there were a 50% turnout threshold, and the
outcome of a referendum was that 49% of the electorate voted "Yes"
and 10% "No". Then it would probably be reasonable to
implement the measure concerned. If, on the other hand, the result
were to be 25% "Yes", and 22% "No", it would
probably be reasonable not to proceed. There was a 34% turnout
in the referendum on the London mayor and assembly in 1998, which
had no threshold requirement, and the government took the view
that, with a 72% "Yes" vote, the measure should be implemented.
Similar considerations hold when the threshold
is in the form of a minimum percentage of the registered electorate
being required to vote "Yes". In Denmark in 1939, there
was a referendum on the abolition of the upper house, proposed
by the government. 92% of those voting supported this measure.
But, because turnout was below 45% of the electorate (the then
mandatory requirement in Denmark for constitutional changeit
has since been lowered to 40%), the government could not implement
the change, even though over nine out of 10 of those voting
had supported it.
A threshold requirement in the form of a proportion
of the registered electorate is likely to depress turnout. For
a "No" voter might believe that an abstention was equivalent
to a "No" vote, and that she need not, therefore, bother
to turn up at the polls. Simply by staying at home, she would
in effect be voting "No". An extraneous factor such
as the weather on polling day may influence the result. Suppose
that in the Scottish devolution referendum of 1979, when the threshold
was 40% of the electorate, turnout had been 80%, and the outcome
had been 41% "yes" and 39% "No", but one-quarter
of the abstainers, i.e. 5% of the electorate, had stayed at home
in the belief that abstention was the same as voting "No".
The true strength of the Noes would be not 39% but 44%, and the
"Noes" would have won. A threshold, therefore, may confuse
voters and produce an outcome which does not reflect their true
There is, however, a strong case for using a
threshold in Northern Ireland where a simple majority, if composed
almost entirely of the majority, Unionist community, might not
be thought sufficient. Instead, a majority of those in both communities
may be needed to secure legitimacy. It is, however, difficult
to ascertain the precise composition of a majority other than
by asking voters to label themselves "Unionist" or "Nationalist".
Therefore a qualified majority large enough to ensure that at
least a substantial proportion, if not a majority, of the minority
community, as well as of the majority community, would be needed.
Where there is to be a threshold in a referendum, it is better
to implement it in the form of a specific percentage of votes
cast, rather than a percentage of the eligible electorate.
Outside Northern Ireland, however, it seems
more in accordance with the constitution as it has developed to
allow the government and Parliament to make the final decision
after a referendum, using its own judgment where there is a narrow
majority on a low turnout. The government and Parliament decided,
perhaps rightly, not to allow Scottish devolution to go ahead
in 1979 despite the small positive majority for it33%-31%far
below the 40% threshold which Parliament had set. On a figure
of 39% to 31%, however, the government would almost certainly
have proposed to allow devolution to go ahead. But it is difficult
to specify in advance the precise margin or size of turnout which
would justify the government and Parliament in its decision whether
or not to accept the outcome of a referendum. That is a matter
perhaps best left to the discretion and judgment of MPs.
There might, however, be a stronger case for
a turnout requirement in local referendums. For the average turnout
in local elections is under 40%, and there is some danger of vociferous
local minorities imposing their policies on the apathetic majority,
who do not bother to vote. It might be reasonable perhaps to require
a turnout of, say, 35% for the outcome in local referendums to
be accepted as valid.
4. LOCAL REFERENDUMS
There is much more scope for the referendum
at local than at national level. The Local Government Act, 2000,
allows, but, following the Local Government and Public Involvement
in Health Act of 2007, does not require, a local authority to
hold a referendum before introducing a directly elected mayor
system. But the Local Government Act, 2000, also introduced, for
the first time into British politics, the initiative. The Act
provided that any 5% of registered local electors could, by signing
a petition, require a local authority to hold a referendum.
The purpose of introducing this device was to overcome the opposition
of the local authority establishment, and in particular, local
councillors, to the introduction of directly elected mayors. So,
for the first time, voters were given the power to override the
wishes of a local council which was unwilling to hold a referendum
on the mayor option.
The referendum allows voters to repair sins
of commission by government. The initiative allows them to repair
sins of omission. The referendum, as it currently operates in
Britain, is a weapon that can be used only by the political class.
The initiative is a weapon to be used by the people.
There seems no reason why the initiative should
be confined to just the one issue of a directly elected mayor.
It could be argued that if voters are to be entrusted with the
decision as to how their local authority is to be governed, they
might also be entrusted with the decision, for example, as to
how their local authority should be elected. 5% of local authority
electors could be allowed to petition for an alternative voting
system for local elections. They could be allowed to petition
also on such matters as the shape and size of the local authority
budget, or the organisation of the schools in their local authority.
The initiative is an innovation with very radical possibilities.
I would hope, therefore, that the Committee
will examine the use of the referendum at local as well as national
level. Local initiatives perhaps lack the glamour of national
referendums, but they can yield real "double devolution",
that is devolution not merely from central government to local
authorities, but from local authorities to the citizen. They could
prove an instrument to encourage participation at local level,
so contributing to the regeneration of our democracy.
31 December 2009
1 This short note summarises material elaborated upon
in chapter 7 of my book, The New British Constitution,
Hart, 2009. Back
There have of course been many referendums and initiatives at
state level in the United States. Indeed, every state except,
for some reason, Delaware, requires a referendum to amend its
David Butler and Austin Ranney, eds, Referendums Around the
World, American Enterprise Institute, Washington, 1994. Back
S.E.Finer, ed, Adversary Politics and Electoral Reform,
Anthony Wigram, 1975, p. 18. Back
House of Commons Debates, vol. 888, col. 293, 11 March 1975. Back
House of Commons Debates, vol. 926, cols. 275ff, 15 February
There is also provision for voters to require a referendum on
the abolition of grammar schools. Back