Referendums in the United Kingdom - Constitution Committee Contents

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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