CHAPTER 3: Referendums on constitutional
Part One: Should referendums
be held on constitutional issues?
64. Some witnesses stated that referendums should
not be frequent. Lord Fraser did not think they should be "part
and parcel of the everyday business of government" (Q 100).
Caroline Morris stated that "frequent resort to referendums
... should be avoided" (p 129). Peter Facey said that
referendums should not be "an everyday occurrence",
but should only be used "soberly and cautiously" (Q 40).
The Government stated that "referendums should only be used
exceptionally within the UK's system of Parliamentary democracy"
65. Many were of the view that if referendums
were used, they should be used in relation to constitutional issues,
in particular those of a fundamental nature. Caroline Morris stated
that "referendums should be held only on fundamental constitutional
issues" because "any alteration to the democratic fundamentals
of a state should have the endorsement of its people" (pp 127-9).
Peter Browning asserted that "major constitutional issues
... would seem to be the most obvious subjects for referendums.
If the structure and rules of politics are to be changed, then
the people rather than the political players should decide on
those changes" (p 113). Professor Tierney argued that
referendums should only be held in relation to "fundamental
constitutional change" and "the highest issues of constitutional
principle", where "the issues are so fundamental that
people should be able to reclaim their direct constitutional authority"
(Q 74, p 49). Dr O'Malley suggested that "major
constitutional changes ... should require the assent of the people
... this would give democratic weight and some permanence to such
a decision" (p 130).
66. On the other hand, Peter Kellner said that
"'constitutional' does not mean the same as 'important'.
I think, in terms of the wider public making that distinction,
it is fairly difficult. It is not easy to explain to ordinary
voters why they should have a vote on whether they have a mayor
but not on whether to bail out the banks or on the deficit reduction
plan" (Q 42).
67. The Government argued that national referendums
should be used "only where fundamental change in the constitution
of the country is under consideration" (p 92). Michael
Wills MP sought to clarify this, stating that "it is not
just a question of the fundamental change", but also of "a
fundamental change which has not been subject to a manifesto commitment".
He also stated that "there are a lot of fundamental changes
which, nevertheless, do not significantly rewire the constitution"
68. How should a "constitutional issue"
be defined? Professor Stuart Weir, Associate Director, Democratic
Audit, told us that "it is an odd question in a way. It is
a bit like saying to somebody, 'Will you describe a camel for
me?' when we all know what a camel actually looks like but would
find it perhaps difficult to give a very accurate description
of the beast" (Q 65). Professor Gallagher admitted that
this was not straightforward, in particular in the UK "given
the absence of a single document entitled 'The Constitution'"
69. Dr Blick asserted that without a codified
constitution, "it is impossible to establish with a sufficient
degree of exactitude what are 'constitutional issues'; and a blanket
requirement for referendums in this area cannot therefore be introduced"
(p 112). Although Professor Saward acknowledged that defining
"constitutional issues" was difficult, he thought that
it was "realistic to aspire to a workable definition"
70. Professor Gallagher argued that the absence
of a written constitution made it more likely that an assessment
of whether or not an issue was "constitutional" would
become a "political" judgment (p 121). Professor
Butler told us that he "would quote Austen Chamberlain: ''Unconstitutional'
and 'constitutional' are terms used in politics when the other
fellow does something you don't like'!" (Q 3). Professor
Bogdanor told us that "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 ... The referendum
could then become a tactical device, 'the Pontius Pilate' of British
politics" (p 45).
71. What is a "fundamental constitutional
issue"? What differentiates a "fundamental constitutional
issue" from a constitutional issue that is not fundamental?
72. Michael Wills MP told us that the Government
had tried unsuccessfully to identify "clear dividing lines
so that everyone knows this is when you hold a referendum and
this is when you do not ... Every time we tried to come up with
a definition that would be sustainable and be consistent with
representative democracy we failed ... Inevitably, however carefully
you define this, however brilliantly 'lawyered' the definition
is, there will be equally brilliant lawyers who will find very
good reasons why that definition should not apply. You do not
actually escape the question of judgment, however you do it ...
In the end, I am afraid, we came up with what is inevitably going
to be a subjective test" (QQ 211-2).
73. Notwithstanding these difficulties, several
witnesses attempted to define more precisely what is meant by
a "fundamental constitutional issue". The following
are some examples:
· "Fundamental questions concerning
sovereignty or a major constitutional settlement, especially if
they concern steps that would be completely or virtually irreversible
once enacted" (Professor Gallagher, p 121).
· "Truly major issues of democratic
principlechange that alters fundamentally the nature of
the state" (Institute of Welsh Affairs, p 126).
· "Topics ... which directly affect
the constitutional make-up and powers of a state" (Caroline
Morris, p 128).
· "Changes to the sovereign powers
of a state" (Caroline Morris, p 128).
· "Those which concern the fundamental
structure of politics and government" (Peter Browning, p 113).
· "Those which implicate the sovereign
relations between the people and government" (Navraj Singh
Ghaleigh, p 139).
· "Anything that changed the power
balances within our democratic system ... anything that in any
way redistributed power in a significant sense" (Baroness
Kennedy of the Shaws, Q 64).
· "Legislative proposals which provide
for a radical alteration in the machinery by which the laws are
made" (Professor Bogdanor, p 46).
· Issues concerning "the very identity
of a sovereign people ... when issues of the highest constitutional
principle are at stake regarding the nature of the state or the
constitution" (Professor Tierney, p 49, Q 74).
· "Significant, encompassing and lasting
change in the formal and general rules and rights which locate
political authority" (Professor Saward, p 15).
· "Anything that changes the dynamic
and the relationship between the people and those who are elected"
(Professor Graham Smith, Q 22).
· "A significant change to the contract
between the individual and the state" (Peter Facey, Q 41).
· Issues that are "so fundamental ...
to our constitutional arrangements ... that they merit consideration
on their own" (Michael Wills MP, Q 210).
74. Some witnesses sought to describe the kinds
of issues that would fall under such a definition:
· Membership of the European Union (QQ 45, 60,
pp 95, 126, 128, 130).
· Entry to the euro (Q 138, p 95).
· Major changes to the devolution settlement
or independent statehood of a sub-state nation or territory of
the UK (QQ 41, 59, 157, 167, pp 15, 45, 49, 126, 128).
· Change to the electoral system or to the
number of MPs (QQ 65, 77, 157, 167, pp 15, 36, 49, 95, 128).
· Changes to Parliament (including the abolition
of the House of Lords) (Q 60, pp 49, 128).
· A fully codified constitution (Q 213,
pp 36, 49).
· Fundamental changes to the constitutional
status of the Sovereign (p 49).
A MATTER OF DEBATE?
75. There was no unanimity amongst witnesses
about whether certain questions should require a referendum:
Referendums relating to the European
76. Navraj Singh Ghaleigh opined that European
integration would be difficult to undertake "without powerful
demands for a referendum" (p 140). Professor Tierney
argued that a change in "the sovereign powers of the UK Parliament
in relation to the EU or other supra-state institutions"
should be subject to a referendum, and that it might be argued
that, given the precedent of 1975, referendums on recent "expansionist"
treaties should have been held (p 49).
77. Professor Bogdanor stated that "there
does seem a strong case in logic ... that there should be a referendum
before major legislative powers are transferred upwards to the
EU as well as downwards to devolved bodies". He suggested
that such a doctrine would have necessitated referendums on the
Single European Act and Maastricht, but not on the Amsterdam,
Nice or Lisbon treaties, since they did not involve major transfers
of powers (p 46). Michael Wills MP restated the Government's
argument that a referendum on the Lisbon Treaty was not required
because it was an amending treaty, although he conceded that this
had been a controversial decision (QQ 237-8).
78. The Institute of Welsh Affairs argued that
"changing the internal arrangements of the European Union"
was "of a lesser order of magnitude" (p 126). Peter
Facey told us that there was an argument as to whether some European
treaties were constitutionally significant enough to warrant a
referendum (Q 42). Professor Butler said that the Conservative
proposal for referendums on further EU treaties was "absolutely
crazy" because many changes may be trivial and entirely in
the UK's interests (Q 4).
79. Dr Blick stated that "advocacy of EU
referendums often rests on the idea that they are required to
legitimate further sovereignty sharing by the UK. But the EU is
by no means the only body within which the UK shares its sovereignty.
Yet there are no demands for referendums in relation to UK membership
of bodies such as NATO or the Council of Europe, despite the significant
consequences of UK participation within them. Second, it might
be asked, if the extension of sovereignty sharing requires a referendum,
then should not its reduction as well? In other words, it could
be argued that a policy such as the UK withdrawal from the EU
Social Charter should be subject to a referendum, a stipulation
not currently being called for in political debate" (pp 111-2).
80. The Government of Wales Act 2006 requires
that a referendum be held on the further devolution of powers
to the Welsh Assembly. The Labour-Plaid Cymru coalition Welsh
Assembly Government propose to hold a referendum before May 2011.
81. The Institute of Welsh Affairs did not believe
that the changes proposed were of sufficient significance to merit
a referendum, since the Assembly "already has some powers
of primary legislation", and the proposed change would only
alter the way in which those powers were acquired and operated
(pp 124-6). Daran Hill told us that he was "rather nervous
about the way that the question the Welsh people will next face
will be phrased. Essentially, what you would be asking people
is, 'Do you want to move from Part 3 to Part 4 of the Government
of Wales Act 2006?' How else might you phrase that? 'Do you want
to move from an Assembly to a Parliament?' Is that really what
is happening? 'Do you want the Welsh Assembly to have the same
powers as the Scottish Parliament?' That is not on the table either.
How you make that particular thing intelligible is something that
is certainly exercising my mind" (Q 108).
82. On the other hand, True Wales argued that
"it is absolutely essential that a referendum should be held
to determine how far the people of Wales wish to go in the direction
of secession from the United Kingdom", because "the
real people of Wales are locked out of the political process at
every level of government, and this democratic deficit needs to
be addressed" (p 149).
83. The Institute of Welsh Affairs highlighted
the lack of consistency on the part of the UK Government, in that
a referendum is required in Wales, but is not proposed in Scotland
in relation to the recommendations of the Calman Commission for
significant alterations to the powers and functions of the Scottish
Parliament, including new powers to raise taxes (pp 125-6).
The Human Rights Act 1998
84. Professor Bogdanor recognised an argument
for using the referendum as a "weapon of retrenchment"
of the Human Rights Act 1998 (p 46). Peter Facey told us
that there should be a referendum on any proposal to repeal the
Act, or to introduce a Bill of Rights "which would fundamentally
entrench certain freedoms of individuals" (Q 60). Caroline
Morris also thought that it was possible for the protection of
rights such as those contained in the Human Rights Act to be subject
to a referendum (p 129).
85. Professor Tierney told us that he would "leave
the Human Rights Act to one side. This was introduced by Parliament
without any call for a referendum and could be modified or repealed
by Parliament without necessarily affecting the UK's international
obligations" (p 49). Professor Weir argued that there
should be a reliance on the judicial system and the European Convention
on Human Rights to adjudicate upon any changes that would affect
human rights (Q 65).
THE UK'S EXPERIENCE: CONSTITUTIONAL
PRECEDENTS OR POLITICAL INCONSISTENCY?
86. To what extent has past experience of referendums
in the UK created a precedent for the future?
87. The Government have stated that "the
precedents set by previous referendums provide a guide to the
types of issue that ought to be considered for any referendum
in the future" (p 92). Professor Hazell did not think
"we can yet form an overarching or complete doctrine ...
At best, I think we can venture a partial doctrine that referendums
are required for devolution, for a constitutional change whereby
the Westminster Parliament delegates legislative power to a subordinate
legislative body ... [and] there is now a kind of reciprocal doctrine
in relation to those devolved institutions" (Q 2). On
the other hand, he told us, "there clearly has been no established
doctrine so far" that a referendum is required "when
Westminster delegates legislative power to a superior, supra-national
body, like the European Parliament" (Q 4).
88. Professor Bogdanor agreed that "conventions
have grown up" that a referendum is required before "any
significant devolution of powers away from Westminster" or
"when a wholly novel constitutional arrangement is proposed",
but not in relation to the European Union (pp 45-6, QQ 74, 78).
89. In spite of such apparent precedents, witnesses
detected a lack of consistency in the UK's experience of referendums.
Professor Hazell noted that though referendums "have been
held so far on constitutional matters ... we cannot yet say that
a referendum is required for any major constitutional change",
since referendums had not been held on the Human Rights Act 1998
or the 1999 reform of the House of Lords (Q 2). Dr Blick
also cited the Human Rights Act 1998, as well as the Freedom of
Information Act 2000 and the establishment of the Supreme Court,
as examples of major constitutional issues that had not been subject
to a referendum (p 111). Professor Tierney noted an "irregular"
pattern whereby referendums were required for Elected Regional
Assemblies, but not for the Lisbon Treaty (p 49).
90. We asked Michael Wills MP about this apparent
inconsistency, in particular in relation to the Government's proposals
to hold a referendum on the electoral system for the House of
Commons but not on any changes to the composition of the House
of Lords. When asked if there was a case for a referendum on House
of Lords reform, he told us that "changes to the way it is
composed do not necessarily require a referendum ... If we were
to look fundamentally at changing the powers of the House of Lords
... then I think that we would almost certainly require a referendum
on that" (Q 213). Although he conceded that a significant
change in the House's composition would mark "a fundamental
constitutional change it is a change that will have been pre-figured
in a manifesto commitment, in fact in several manifesto commitments.
It will be, we think, probably an all party commitment in all
main parties' manifestos. The people of this country will have
had decades to consider this change over time, it is not a change
that has suddenly emerged." For this reason, he asserted,
a referendum was not required (Q 220).
91. On the other hand, the Government have judged
that a change to the way that the House of Commons is composed
should be subject to a referendum, because:
"There is something, we felt, slightly distasteful
... about MPs deciding for themselves without any validation from
the public as a whole how they should be constituted. It is the
self-legislating aspect of this particularly because it relates
to the House of Commons who are the primary chamber, that is the
reason for that. People may say that exactly the same criteria
should apply in these cases but in this case it is a longstanding
manifesto commitment for whatever reason, good or bad, that we
should have a referendum on any change to the voting system, and
the principled reason behind it is that MPs should not decide
themselves alone how they should be constituted ... The House
of Lords is in a different position" (Q 222).
92. This Committee's first report set out what
were seen then as "the five basic tenets of the United Kingdom
· Sovereignty of the Crown in Parliament;
· The Rule of Law, encompassing the rights
of the individual;
· The Union State;
· Representative Government;
· Membership of the Commonwealth, the European
Union, and other international organisations.
93. Although these tenets describe a "constitutional
issue", they do not define what constitutes a "fundamental
constitutional issue". Some issues can be judged as "fundamental",
and others not so. There is also a grey area, where it is a matter
of judgment as to the constitutional significance of a given issue.
The UK's experience of referendums does not offer any consistency
in terms of judging what constitutes a "fundamental constitutional
94. Notwithstanding our view that there are
significant drawbacks to the use of referendums, we acknowledge
arguments that, if referendums are to be used, they are most appropriately
used in relation to fundamental constitutional issues. We do not
believe that it is possible to provide a precise definition of
what constitutes a "fundamental constitutional issue".
Nonetheless, we would consider to fall within this definition
· To abolish the Monarchy;
· To leave the European Union;
· For any of the nations of the UK to
secede from the Union;
· To abolish either House of Parliament;
· To change the electoral system for
the House of Commons;
· To adopt a written constitution; and
· To change the UK's system of currency.
This is not a definitive list of fundamental constitutional
issues, nor is it intended to be.
Part Two: Mechanisms for triggering
a constitutional referendum
95. In the light of the difficulties of defining
a "fundamental constitutional issue", the Government
have argued that "the decision as to whether or not a referendum
should be held should be made on a case-by-case basis. We do not
believe that an objective test could be established as to the
circumstances in which a referendum should and should not be held"
96. However the decision as to the use and timing
of referendums remains almost entirely in the hands of the government
of the day. In particular, the inconsistency of its use in the
UK lends weight to the arguments set out in Chapter 2 that the
referendum remains, at heart, a tactical device rather than a
matter of high constitutional principle. As Dr O'Malley surmised,
"the question arises, who, in the UK could decide what is
a major constitutional issue? If it were the government, this
would make a mockery of the constitution" (p 130).
97. Professor Saward told us that the "master
constitutional issue" was whether "to take this legally
out of the hands of political parties or government managers and
put it on a more consistent and more independent basis" (Q 22).
98. Witnesses proposed various "triggers"
by which a decision could be made whether or not a referendum
should be held.
A WRITTEN CONSTITUTION?
99. As we have seen, some witnesses argued that
it was particularly difficult to define a "constitutional
issue" in the UK in the absence of a written constitution.
100. Some advocated the adoption of a written
constitution. Dr Blick asserted that "to dabble with the
idea of requiring referendums for 'constitutional issues' without
first clearly codifying the UK constitution is to approach the
issue from the wrong end. A codified constitution must be established
first. Within such an arrangement referendums could be provided
with a clearly delineated role, integrating them within an overarching
system of representative democracy" (p 112).
101. Others were less convinced. Professor Butler
argued that "if we had got to a written constitution, we
might get ourselves entangled, as the Irish got entangled"
on the Lisbon Treaty (Q 5). Although Peter Kellner concluded
that "if you are going to go down the route of saying we
should have referendums on constitutional issues, you need a constitution",
he nonetheless thought that "the fluid constitution we have
is actually better than a written constitution" (Q 44).
102. A written constitution could provide
a more precise definition of a "constitutional issue",
and define which issues required a referendum before any change.
The arguments for and against introducing a written constitution
are outwith the scope of this inquiry.
A STATUTORY SAFEGUARD?
103. Some witnesses argued in favour of a statutory
safeguard, either through a stand-alone Referendums Act which
would define the issues for which a referendum would be required,
through the entrenchment of existing legislation to prevent its
repeal without recourse to a referendum, or through future legislation
that would define when referendums were required.
104. The Government's evidence pointed out that
there were already limited statutory provisions setting out when
referendums must be held, such as before Northern Ireland could
cease to be a part of the United Kingdom and form part of a united
Ireland, before an
Elected Regional Assembly could be established,
or before full legislative competence could be transferred to
the National Assembly for Wales.
The Government stressed that "these do not provide an objective
test for determining when a referendum on other issues should
be held, but provide a further guide to the types of issue that
might be subject to a referendum in the future" (p 95).
105. Unlock Democracy argued that Parliament
could either "pass a Referendums Act which lists all the
Acts of Parliament or clauses of acts that cannot be repealed
without a referendum", or it could "amend the key acts
themselves so that they cannot be repealed or amended without
a referendum. The first option would be clearer and easier for
the public to understand" and "would in effect move
you towards a written constitution" (p 20, Q 55).
106. Professor Bogdanor suggested that "one
possible way of entrenching legislation" would be to ensure
that any future amendment or repeal of a particular statute, such
as those providing for the devolved bodies in Scotland, Wales
and Northern Ireland, should require a referendum (p 46).
107. Professor Gallagher also suggested that
a legal framework could be devised that would give strong guidelines
as to the issues on which a referendum would be ruled out, possible,
or mandatory. He stated that though a government with a parliamentary
majority could interpret this legislation to their own advantage,
"the risk of losing support through being seen to violate
the 'spirit' of the rules might constrain governments to some
extent" (p 121). The Institute of Welsh Affairs advocated
the amendment of the Political Parties, Elections and Referendums
Act 2000 (PPERA) to include a clause that "any referendum
on a constitutional change should apply only to truly major issues
of democratic principlechange that alters fundamentally
the nature of the state" (p 126).
108. Some witnesses emphasised the difficulties
with such a statutory approach. Professor Tierney thought that
interpretation could be difficult in the absence of a written
constitution, for instance in judging which EU constitutional
reforms would need referendums and which would not (p 50).
Peter Kellner told us that clauses that sought to require a referendum
on a particular policy issue would be "an open invitation
to any government with a majority to try and entrench a partisan
policy by saying any subsequent government cannot simply put it
in their manifesto that they going to change it; they would have
to go back to the people" (Q 56).
109. There was evidence on whether it was possible
for one Parliament to bind another. Professor Bogdanor stated
that "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 ... The referendum requirement would then redefine what
was to count as valid legislation on a particular topic ... There
seems no reason in principle why such a requirement should not
be possible" (p 46). Dr Blick noted that "though
in theory a future Parliament could repeal such a statute, there
might be a strong political imperative not to do so" (p 111).
110. Michael Wills MP told us that if the referendum
were "firmly to become embedded in our constitutional arrangements
then the case for some sort of legislative framework would be
very strong, but it is not [firmly embedded] and nor should it
be, in my view" (Q 214).
111. It is possible to set out in legislation
specific issues which should be subject to a referendum, as has
been done in the past. Although one Parliament cannot bind another,
Parliament might not lightly repeal such legislation. But, since
it is impossible precisely to define what constitutes a "fundamental
constitutional issue", it follows that it is impossible to
set out in legislation an all-encompassing list of such issues
that should be subject to a referendum.
A PARLIAMENTARY MECHANISM?
112. The Government asserted that "it is
for Parliament to determine whether or not a referendum on any
particular subject should be held" (p 94).
113. Various parliamentary trigger mechanisms
were suggested. Some advocated the use of parliamentary "supermajorities".
Professor Gallagher suggested that "the Danish rule that
delegation of sovereignty to international authorities requires
a referendum unless there is a five-sixths majority in Parliament,
or some variant of this rule, would ... be worth considering"
(p 121). Peter Facey agreed (Q 42).
114. Peter Browning argued that a free vote in
the House of Commons "is probably the best way of deciding
the topics on which referendums should be held" (p 114).
115. Nigel Smith suggested that "the Speaker
in the Commons could certify that a bill or treaty does not contain
constitutional issues as defined in a prior set of tests".
He also argued that the House of Lords "should be given the
power to call an optional referendum on a contentious bill"
116. Professor Saward suggested that this Committee
could have a role in defining a set of issues that "are widely
accepted as constitutional issues ... under an appropriate guiding
principle. A pragmatically illustrated definition from the Committee,
along these lines, may begin to generate consensus ... In this
way, the Committee may help to prompt clear, focused debate"
117. The Committee's first report concluded that
"we do not wish, nor indeed would we have the time, to become
some sort of constitutional sieve, sifting through the fine detail
of every constitutional issue whatever its importance. It is for
this reason that we will be focusing on significant constitutional
issues ... In order to be significant, a constitutional issue
needs to be one that is a principal part of the constitutional
framework and one that raises an important question of principle."
We reaffirm this statement.
118. Parliament should judge what issues will
be the subject of referendums. In its first report, this Committee
stated that it would "focus on issues of constitutional significance"
determined by whether an issue raises "an important question
of principle about a principal part of the constitution".
We believe that this provides a useful test, first, of whether
an issue is of fundamental constitutional significance, and second,
of whether a referendum is therefore appropriate.
13 See Scotland Office press release, 25 February 2010,
1st Report (2001-02), Reviewing the Constitution: Terms of
Reference and Method of Working (HL Paper 11), para 21. Back
See paras 68-70 above. Back
Northern Ireland Act 1998. Back
Regional Assemblies (Preparation) Act 2003. Back
Government of Wales Act 2006. Back
Reviewing the Constitution, op. cit., para 22. Back
ibid., para 27. Back