CHAPTER 4: Other uses of referendums
119. Witnesses also discussed the use of referendums
in other contexts. Two principal cases were identified:
Part One: Citizens' initiatives
120. A distinctive type of referendum is the
citizens' initiative. Initiative processes allow citizens either
to propose statute laws, constitutional amendments or broad policy
principles, or to challenge statutes and amendments passed by
representatives. They are thus promoted as solutions to several
problems, such as voter disengagement, abuse of power and unresponsive
government. They are also seen by some as presenting a solution
to the problem of defining what counts as an important constitutional
issue—rather than attempting to define this a priori,
citizens' initiatives allow the public to decide what issues they
want to have a say on.
121. Three of the four referendum processes available
in Switzerland are citizens' initiatives, dating from the second
half of the 19th century.[21]
Half of the States of the USA allow citizens' initiatives of one
kind or another.
122. The process typically starts by gathering
signatures on a petition which, if it reaches a pre-set target
in a given time-frame, triggers a vote. The signature target might
be an absolute number, like the 100,000 required for Swiss initiatives,
or be based on a percentage of registered electors. The percentage
varies from five per cent in Californian statute initiatives to
ten per cent in New Zealand. How demanding these targets are depends
on the time limit for gathering them: New Zealand allows 12 months
with three-month extensions; California has a 150 day limit, making
the Californian daily target three-and-a-half times higher than
New Zealand's. There are many other variables, including when
the vote must be held; who sets the question wording; whether
there are campaigning controls; whether the vote is binding or
not; whether the decision is made by virtue of a simple majority
or something more complex; and whether or not it is subject to
judicial review.
123. A number of witnesses advocated the citizens'
initiative model. Professor Bogdanor thought that it was "an
important way forward and an important instrument of a modern
democracy", allowing voters to "repair sins of omission"
by government (Q 87, p 48). Professor Graham Smith asserted
that "there is widespread criticism of the current political
culture in this country that there are not the opportunities for
citizens to participate in politics. The citizens' initiative
is surely one of the options available for realising that possibility
of meaningful participation" (Q 33).
124. Navraj Singh Ghaleigh argued that citizens'
initiatives provide "a mechanism by which power can be shared
with the citizenry, kicking against a too tightly controlled agenda
setting capacity" (p 140). Nigel Smith cited the way
in which initiatives encouraged several US states to introduce
laws promoting the use of clean energy, in spite of the opposition
of the Federal Government (p 148). Unlock Democracy supported
the introduction of citizens' initiatives so long as there were
high thresholds so that the proposals could not be abused, and
a clear list of policy areas that should be exempt (p 25).
Professor Saward asserted that "there is nothing about the
institution of the citizens' initiative which necessarily says
it cannot be used in conjunction with or to prompt or to help
set the agenda of parliamentary procedures" (Q 29).
125. However, Professor Gallagher argued that
the implications for Parliament are much greater, and the potential
for conflict with the system of representative democracy much
higher with initiatives than with other referendums. He stated
that critics would see the initiative as "empowering well
organised lobbies who are able ... to obtain the requisite number
of signatures" (pp 120-1, 123). Professor Williams
argued that evidence suggested that initiatives were open to manipulation,
in particular by the media and "money interests", and
that they did not provide an effective means for the public to
bring about legal and policy change (p 151). Professor Tierney
pointed out that because of the strong representative tradition
in the UK, the initiative process would not seem to be appropriate
(p 51).
126. Peter Kellner argued that, in California's
experience, "a citizens' initiative is a device for the sad,
the mad, the bad and the very, very rich" (Q 50). Michael
Wills MP asserted that "a whole plethora of populist measures
were brought in bringing a large number of direct democratic measures,
and as a result of this the State of California has great difficulty
in funding all sorts of essential services ... and very recently
the Chief Justice of California referred to the system of governance
... as 'dysfunctional'" (Q 266). However, Professor
Graham Smith argued that the Californian model was at the extreme
of how an initiative process could work, compared to the more
"stable" Swiss model (Q 25).
127. Caroline Morris pointed to the difficulties
under New Zealand's Citizens' Initiated Referenda Act 1993, which
had "essentially led to the referendum becoming an expensive
form of opinion poll, and the indicative nature of the result
has led to frustrations with the government response". She
argued that the sorts of questions which had been put, for instance
on the number of firefighters, reform of the justice system and
parental smacking, "are unsuitable as the subject of a referendum.
Behind each question lies either an array of complex and involved
policy decisions ... or a private matter rather than national
public debate, which the public was not best placed to decide."
She also argued that the New Zealand experience had shown the
wording of a question to be "an interpretative minefield"
(pp 127-9). Dr Catt, a former New Zealand Electoral Commissioner,
said that this was "probably the best example of how not
to run referenda in the world ... I do not think there is a single
part of that legislation that works well" (Q 158).[22]
128. Some witnesses highlighted the value of
other engagement tools such as citizens' assemblies. Such a model
was used in the Canadian province of British Columbia. Professor
Graham Smith explained that "the executive decided that they
needed to review the electoral system and that it should not be
left in the hands of politicians to decide what the referendum
question should be; so they established a year-long Citizens'
Assembly of 160 randomly selected citizens who then learnt about
electoral issues and put forward a proposal which then went to
a referendum. I quite like that idea of, 'Oh, yes, we have a political
problem, we need to change the electoral system', but then saying,
'and it's not necessarily the politicians who should decide what
the choice is, we are going to hand that over to a different body'.
It is those sorts of examples that one should look at: the imaginative
mixing of a referendum with other democratic innovations"
(Q 24).
129. Baroness Kennedy of the Shaws advocated
"deliberative polling where you bring together ... a cross-section
of the general public ... and then you provide them with good
information and the opportunity to question experts, and then
allow them to then reach some sort of conclusion on whatever the
issue is that you are placing in front of them. It is a far more
satisfactory way than simply asking a perhaps largely uninformed
or influenced or manipulated public for a view" (Q 64).
Professor Weir advocated "deliberative juries of citizens
to consider all the kinds of questions which need thorough investigation
in advance" (Q 71).
130. Given our concerns about the use of referendums,
we are not convinced by the arguments in favour of citizens' initiatives.
Nonetheless, we acknowledge that there is a need to encourage
greater citizen engagement in the democratic process. The use
of such tools as citizens' assemblies and citizens' juries may
be worthy of consideration in this regard.
Part Two: Local referendums
131. A number of witnesses stated that referendums
were particularly suited to deciding local issues. The Government
outlined current arrangements:
"A number of local authorities have relied
on the powers of general competence established by both the Local
Government Act 1972 and the Local Government Act 2000 to hold
advisory referendums. Additionally, section 116 of the Local Government
Act 2003 creates an express power enabling local authorities to
conduct an advisory poll or referendum. The Electoral Commission
has no role in the conduct of such referendums. There is no obligation
on a local authority to hold such a poll, nor any requirement
to act in accordance with the result of such a poll but this provision
allows authorities to hold a poll on any matter relating to the
services for which it is responsible (including where these services
may be delivered by a third party), or the finance that it commits
to those services, or any other matter that is one relating to
the authority's power under section 2 of the Local Government
Act 2000 (authority's power to promote well-being of its area).
Section 116 of the Local Government Act 2003 also provides express
freedom to a local authority in determining, for any poll it proposes
to hold, who to poll and how the poll is to be conducted"
(p 94).
132. Michael Wills MP suggested that "local
authorities should engage more vigorously to seek the views of
their residents ... Where everyone is looking to give the taxpayer
value for money it is the local resident who has the best view
of how services can best be deployed" (QQ 263-4).
133. Professor Bogdanor asserted that "we
can spend a lot of time on the more glamorous constitutional issues
but perhaps the way forward with the referendum and popular involvement
is on the less glamorous local issues connected with public services"
(Q 87). He argued that local initiatives could deliver "'double
devolution' ... not merely from central government to local authorities,
but from local authorities to the citizen", and could contribute
to the regeneration of local democracy (p 48). However, Professor
Bogdanor said that turnout could be "very low indeed"
in local referendums (Q 97).
134. Professor Saward stated that there was a
strong case for greater use of referendums and citizens' initiatives
at local level (p 15). In spite of his scepticism about national
referendums, Steve Richards said that local polls could be a way
of bringing "moribund" local politics "to life"
(QQ 139-40).
135. The Institute of Welsh Affairs pointed to
"the honourable tradition in Wales of settling divisive issues",
such as Sunday licensing, "by local referendums or polls".
However they argued that "provision for such polling should
only be made where an issue is so divisive that locally elected
representatives cannot resolve it", and that such local referendums
"should not be and would not be a quick fix" (p 126).
Peter Facey pointed to the inconsistencies at local level, in
that a referendum is required if an elected mayor is proposed
but not if it is proposed to abolish a local authority (Q 55).
136. Lord Fraser warned against the use of local
referendums, as he feared they could undermine local representative
democracy (Q 114). Michael Wills MP also referred to the
importance of representative democracy at local as well as national
level (Q 261). However, he did not think that the Government's
warnings against the widespread use of referendums would be vitiated
by an increase in local referendums, because, he argued, "there
is a categoric difference between local referendums and great
national referendums" (Q 264).
137. Concerns were also expressed about the regulation
of local referendums. The Institute of Welsh Affairs pointed to
"the absence of any standard framework of rules" in
relation to such polls (p 127). Unlock Democracy expressed
concern about perceptions of bias in the question posed by Edinburgh
City Council in February 2005 on whether or not to introduce congestion
charging. They argued that the Electoral Commission should be
given responsibility for overseeing local as well as national
referendums "where referendums are used by principal authorities
to endorse significant changes". They stated that changes
to local government structure, for instance proposals to adopt
a directly elected mayor, "are significant constitutional
changes and as such should be regulated by an independent body"
(pp 20-1).
138. Jenny Watson noted that while the Electoral
Commission "have a very clear role in relation to a referendum
that comes from the Westminster Parliament which relates to governance
in Wales ... it is possible for local people in Greater Manchester
to be consulted about a congestion charge without us having any
say or any oversight of that referendum whatsoever" (Q 208).
139. Michael Wills MP did not favour the Electoral
Commission having a role in local referendums: "we sought
last year really to define the role of the Electoral Commission
in a way that focuses their role more precisely and I think if
we were to give them a role in local referendums that would run
counter to that" (Q 262).
140. We do not believe that local referendums
are the most effective way of increasing citizen engagement with
the local democratic process.
21 See Appendix 3. Back
22
For further details of these international examples see Appendix
3. Back
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