CHAPTER 5: The referendum campaign:
practical issues
141. In spite of the evidence we received concerning
the difficulties pertaining to the use of referendums (see Chapter
2), we have seen that referendums may become a part of the UK's
political and constitutional landscape. Therefore practical issues
relating to the holding of a referendum are still relevant and
we consider these in this chapter.
142. The Political Parties, Elections and Referendums
Act 2000 (PPERA) sets out the legal framework for the conduct
of referendums in the UK, in one or more of the UK's constituent
nations, or in any region in England, where that referendum is
held in pursuance of an Act of Parliament. The Electoral Commission
is responsible for the conduct of referendums which are held under
the auspices of the PPERA. Box 2 sets out the main provisions
of the PPERA and the main responsibilities of the Commission.
BOX 2
Main provisions of the PPERA and the main
responsibilities of the Electoral Commission
| The Political Parties, Elections and Referendums Act 2000 (PPERA) prescribes inter alia:
· the means by which a referendum period is determined;
· the means by which referendum question(s) are determined;
· requirements on individuals and groups who campaign in referendums—known as permitted participants—including controls on the amount that they spend and on the donations that they are permitted to accept; and
· the means by which lead campaign groups—known as designated organisations—are determined and the assistance which they are entitled to receive.
The Electoral Commission's responsibilities include:
· commenting on the intelligibility of the referendum question;
· registering those who want to spend significant amounts on campaigning in the referendum as 'permitted participants';
· where appropriate, appointing lead campaign groups ('designated organisations') for each outcome;
· ensuring that designated organisations have access to certain assistance,
· including grants that the Commission determine within statutory limits;
· making recommendations to Government on campaign spending limits for sub-UK referendums;
· monitoring and reporting on campaign spending; and
· reporting on the administration of the referendum.
|
Timing of a referendum
143. The choice of when a referendum is to be
held can affect the cost of holding it, voter turnout and the
impact of the result. Holding referendums at the same time as
elections can reduce costs (pp 22-23) and, some witnesses
suggested, increase turnout. But, the balance of the evidence
we received was against holding referendums on the same day as
General Elections. Unlock Democracy feared that holding the two
on the same day might lead to the referendum being drowned out
by other issues (p 23) whilst Nigel Smith's greater worry
was that this could lay the referendum open to the charge of rigging
(p 148). He told us that the Electoral Commission had recommended
against the holding of referendums at the same time as a General
Election (p 148). The Electoral Commission's own evidence
was more equivocal on this point: "what we would want to
do in the case of the combination, whether with a UK parliamentary
General Election or any other form of combination, is to look
very clearly at the situation at that time and to set out what
we saw to be the benefits and the risks of such a combination,
and to be very clear about how one might mitigate any risks that
could arise" (Q 195).
144. It was suggested by some witnesses that
referendums might be held on the same day as elections other than
General Elections. Professor Gallagher and Peter Facey said that
referendums and elections happened simultaneously in other countries
with no apparent confusion on the part of the electorate (p 123
and pp 22-23). On the other hand, Professor Tierney told
us that referendums should be free-standing events which were
kept quite separate from regular representative democracy (p 51).
145. We recommend that referendums should
not be held on the same day as General Elections. For other elections
we recommend there should be a presumption against holding referendums
on the same day as elections but that this should be judged on
a case-by-case basis by the Electoral Commission.
146. With regard to the timing of referendums,
the PPERA (Section 102(4)) specifies that votes must be held within
six months of the enabling legislation being passed. However,
because paving legislation must be passed by Parliament before
a referendum on any particular subject can be held, the overall
timetable for the conduct of any referendum is in government hands.
Some witnesses were worried that in practice this gave the Government
too much control (Q 112 and p 144).
147. We recognise the concerns expressed that
government has, in practice, substantial control over the timing
of referendums and recommend that consideration should be given
to the introduction of legislation about referendum management.
Wording of the question
148. Under the PPERA the Electoral Commission
must consider the Government's proposed wording of the referendum
question(s) and publish a statement of its views as to the intelligibility
of that question or questions. The Secretary of State is not obliged
to take this advice into account.
149. We received evidence questioning this arrangement.
Professor Graham Smith told us that:
"The Electoral Commission is consulted,
but it is not clear what happens if the Commission thinks it is
a very poor question. It could send it back to the Secretary of
State and the Secretary of State could say, 'The Electoral Commission
thinks it is a very poor question, let's carry on with my very
poor question'. He could still do that. There needs to be something
in there about ensuring that the question is fair and that needs
to be done independently" (Q 37).
150. Professor Bogdanor recommended that the
question should be formulated by a neutral body such as the Electoral
Commission (Q 85). Baroness Kennedy reminded us that the
Power Commission, which she chaired, had recommended that an outside
body should have control over the question (Q 64).
151. We asked the Electoral Commission whether
its powers should be extended in relation to the wording of the
referendum question:
"I think our view would be that it would
be extremely unlikely for a Secretary of State to be in receipt
of our advice with the documentation and the testing and everything
that we have done being published transparently and decide not
to listen to our advice, because inevitably what that does is
to set up a debate between the Electoral Commission and the Secretary
of State where we are effectively saying, 'Your question is not
the question which should be put,' and in that situation I think
it would be extremely difficult for the Secretary of State to
proceed" (Q 188).
152. Michael Wills MP agreed that it would be
difficult for a Secretary of State to ignore the views of the
Electoral Commission on the wording of a referendum question:
"I think it would be politically extremely unwise. I cannot
imagine any sensible politician doing that—it would defeat
the whole purpose of having a referendum in the first place, which
is to legitimise the decision. To have a controversy, a row with
the Electoral Commission would be foolish" (Q 248).
153. Mr Wills was broadly happy with the current
arrangements relating to the framing of the referendum question:
"It is right that the ultimate authority
should lie with Parliament, with the Government of the day framing
the question in secondary legislation, but, of course, it is crucial
that the Electoral Commission has the role that it does in deciding
on the intelligibility of the question, which is fundamental to
it being perceived as a fair process" (Q 246).
154. Notwithstanding the Electoral Commission's
assessment that it was extremely unlikely that a Secretary of
State would ignore its advice on the wording of the referendum
question we recommend that, rather than the Government making
the final decision, the Electoral Commission should be given a
statutory responsibility to formulate referendum questions which
should then be presented to Parliament for approval.
155. The Electoral Commission stated that referendum
questions should present the options to voters clearly and simply
and that:
"We would assess the question using our
[Referendum question assessment] guidelines, taking account of
evidence from research with voters, and discussions with key stakeholders
and plain language and accessibility experts" (p 81).
156. Witnesses were unanimous in agreeing that
referendum questions should be worded in accordance with the broad
principles outlined by the Electoral Commission. There was disagreement
however as to whether multi-option questions[23]
were compatible with these principles.
157. Peter Browning and Navraj Singh Ghaleigh
feared that multi-option questions might confuse voters (p 114
and p 141). Professor Butler asserted that multi-option questions
were difficult because "countries have tried triple-question
referendums or quadruple-question referendums and you get into
tangles about what is meant and possible litigation" (Q 5).
Dr O'Malley suggested, "it might be cheaper and easier to
commission an opinion poll on the subject" (p 131).
Professor Saward was against multi-option questions because "there
is not an issue where you could not locate something very like
a 'yes' or 'no' principle at the core of it" (Q 36).
158. Unlock Democracy told us that, whilst not
preferable, multi-option referendums could be appropriate in some
circumstances where the issue at stake could not be reduced to
a single question (p 21). The de Borda Institute and the
New Economics Foundation advocated the use of multi-option questions
because "if a two-option question is posed when the debate
is in fact multi-optional, the outcome may well be inaccurate"
(p 117). Both Unlock Democracy and Caroline Morris pointed
to the referendums in New Zealand in 1992 and 1993 on electoral
reform as examples of the successful use of multi-option referendum
questions (p 21 and p 129). Dr Catt, however, told us
that the multi-option question worked in this case because the
winning result was the "only one that any pressure groups
were arguing for; nobody was arguing for the other three options"
and notwithstanding this successful use of a multi-option question,
she said that multi-option questions should be avoided wherever
possible (Q 173).
159. We recommend that the presumption should
be in favour of questions posing only two options for voters but
recognise that there may be occasions when multi-option questions
are preferable. We look to the Electoral Commission to assess
the merits of multi-option questions in their referendum question
assessment exercise.
Information and the media
160. The PPERA does not contain provision for
the Electoral Commission to promote public awareness of specific
issues relating to referendums. It does however give the Commission
the responsibility to decide which permitted participants (if
any) should be designated as a lead campaign organisation for
each outcome and to determine and administer the level of the
public grant (up to £600,000) which designated organisations
should receive.
161. The enabling Act[24]
for the North East referendum gave the Electoral Commission powers
to promote public awareness and the Commission encouraged people
to register to vote and provided information on how to take part.
This Act also gave the Electoral Commission powers to provide
information explaining the "yes" and "no"
arguments had they not been able to designate organisations as
lead campaigners for each outcome of the referendum. The Electoral
Commission told us that, if permitted in paving legislation for
future referendums, they would inform voters about the referendum
and how to take part (p 82).
162. Many witnesses emphasised the importance
of good public information provision in a referendum campaign.
Professor Tierney told us that "education is a key factor
if the referendum is to be deliberative" (Q 90). Professor
Graham Smith agreed that there was a need for independent information
provision (p 16). Unlock Democracy asserted that the quality
of public information was key to the success of the referendum
as a whole:
"Where there are effective public education
campaigns referendums can create high levels of support for significant
changes to the way we are governed ... If the public education
campaign is not properly resourced or is seen to be biased the
referendum campaign is unlikely to have a positive effect on political
engagement and may even increase disillusionment with the political
process" (p 18).
163. Several witnesses pointed to the provision
of public information provision for the New Zealand electoral
reform referendums of 1992-93 as examples of excellence. Dr Catt
told us that there was a, "year-long, very well-funded, independently-run
education campaign that went with it [the 1992-93 referendums].
I think that is what makes the difference and it is expensive"
(Q 158). In New Zealand the public education campaign ran
alongside the campaigns to try and persuade voters to vote one
way or another (Q 166). Unlock Democracy praised "the
experience in New Zealand of the two referendums on electoral
reform [which] demonstrates that setting up an independent body
to provide information and run the public education process is
money well spent and is in effect an investment in democracy"
(p 22).
164. The expense of good public information campaigns
was asserted by Professor Weir who also warned of the danger of
ill-informed results without a good public information campaign
(Q 71). Baroness Kennedy highlighted that "well-informed
members of the public reach good conclusions" (Q 64).
165. The extent of government involvement in
providing information to voters during a referendum campaign is
critical. Lord Fraser told us that prior to the enactment of the
PPERA, governments could, "under the guise of putting out
information, resort to propaganda" (Q 112). He commended
restrictions contained in the PPERA on central and local government
putting out information during the 28 day period before a referendum
that might have a bearing on the referendum (Q 105). The
Electoral Commission suggested that this provision should be changed
so that the restriction applied ideally from the start of the
referendum period but at the very least from the 28 day period
before postal ballot packs are issued (p 81).
166. The Constitutional Reform and Governance
Bill is currently going through Parliament. The Bill would confer
on the Electoral Commission new power to promote public awareness
but only in relation to the referendum on the voting system for
parliamentary elections which is proposed in the Bill.
167. We are concerned about the effectiveness
of the regulation of information provision in UK referendums.
We commend the model provided by the 1992-3 electoral reform referendums
in New Zealand when an independent body provided information and
ran the public education process.
Funding and campaigning organisations
168. Box 3 below sets out the requirements of
the PPERA relating to the funding of campaign organisations during
referendum campaigns and also sets out the Electoral Commission's
role in designating lead campaign organisations.
BOX 3
Requirements of the PPERA relating to
funding of campaign organisations and Electoral Commission's role
in designation
| The PPERA provides that individuals and organisations who wish to campaign in a referendum may spend up to £10,000 in doing so without facing any restriction or control on their activity.
Permitted Participants
Those individuals or organisations that spend more than £10,000 must register with the Electoral Commission as a "permitted participant", and are then subject to the restrictions on campaign spending, donations and other activity set out in the PPERA. Permitted participants must name a responsible person to whom liability attaches for any breach of these restrictions. Permitted participants are subject to a maximum spending limit of £500,000, and must provide a return to the Commission as to their referendum expenses following the referendum. Where referendum expenses exceed £250,000, this return must be accompanied by a report prepared by a qualified auditor.
Designated Organisations
The Commission may (but is not obliged to) designate lead campaign organisations for each outcome in a referendum. If the Commission designates a lead organisation for one outcome then it must also do so for the other outcome(s). The spending limit for designated organisations is £5 million.
Grants
Designated organisations receive a grant from the Electoral Commission of up to £600,000 to spend on referendum expenses. The level of the grant and the conditions that attach to it are determined by the Commission. The grant is administered by the Commission. Additionally, designated organisations are entitled to one free item of postal communication to be delivered by the universal service provider, the use of rooms free of charge for holding public meetings, and the right to referendum campaign broadcasts.
Donations
All permitted participants are subject to controls on the donations that they are permitted to accept. These controls mirror the existing controls introduced elsewhere in the PPERA on permissibility of donations to political parties, candidates and other regulated entities. The PPERA specifies categories of permissible donor. Permitted participants cannot accept donations of more than £500 from impermissible donors. Permitted participants must record the details of donations that they receive above £500. Details of donations above £7,500 must be reported to the Commission alongside the referendum expenses return. Loans to permitted participants are currently unregulated.
|
Source: Government written evidence (p 93)
169. Daran Hill and Lord Fraser had experience
of running referendum campaigns prior to the enactment of the
PPERA and considered that its provisions relating to campaigning
and funding were a definite step forward. (Q 104) Lord Fraser
said of his experience of raising funds for the "no"
campaign in the Scottish devolution referendum that "we had
to rely on the old-fashioned technique of simply begging letters.
We did discover some people who were sympathetic to the cause
who did contribute significant sums of money on an individual
basis, but nothing like enough money to run a really serious campaign"
(Q 104).
170. Daran Hill explained why he welcomed the
provisions of the PPERA:
"I am particularly heartened by the existing
legislation that has now come, in terms of recognising the 'yes'
and 'no' campaigns and giving them proper status because for about
half the campaign [the Wales devolution referendum campaign] ...
there was no 'no' campaign until late June/early July. We were
not really arguing with anyone. Then it came about almost overnight,
where two members of the Labour party ... decided to start a 'no'
campaign themselves ... It grew quite embryonically, but it did
seem a relatively strange experience for four or five months—arguing
against nobody" (Q 101).
171. The Electoral Commission outlined the principles
of how they selected lead campaign organisations:
"I think in approaching the designation
process we are clear that we are looking for a campaign organisation
to be a 'yes' or 'no' campaign that had a broad base of support
and I suppose our starting position would be that that is likely
to be an umbrella type of organisation which brings together perhaps
a range of political views within it" (Q 177).
172. In relation to designation, Professor Butler
warned that "if there are many sides to a referendum, it
can be enormously complicated" and that this was made worse
if the various organisations on one side of a referendum argument
did not get on well with each other (Q 12). The Electoral
Commission told us that in its experience it had not found it
difficult to designate lead campaign organisations but some of
the groups which were not designated did not agree with its decisions.
In any future referendums it intended to make its decision-making
relating to designation more transparent to the public (Q 177).
173. A number of witnesses expressed concern
about the spending restrictions set out in the PPERA. They were
concerned that the current restrictions would allow a campaign
organisation to split into a number of organisations each spending
less than £10,000 and thus avoid the requirement to register
with the Electoral Commission as a permitted participant. Unlock
Democracy suggested that it "may be possible to bypass the
campaign spending restrictions by having a diffuse movement rather
than a centralised campaign" (p 22). Nigel Smith was
more sceptical: "The Electoral Commission would not have
been able to pin down any shadowy co-operation between them or
the presence of richer donors sprinkling money surreptitiously"
(p 145). Professor Hazell told us that "it has not yet
been properly tested in a national referendum ... whether the
Electoral Commission will be able effectively to control the campaign
spend on both sides" (Q 8). Dr Wilks-Heeg noted "the
Electoral Commission's own experience of attempting to enforce
regulation relating to party finance have revealed the extent
to which both political parties and donors to political parties
seek to exploit loopholes in the law" (p 36).
174. Clause 89 of the Constitutional Reform and
Governance Bill currently under consideration by Parliament would
amend the PPERA so that spending limits could be aggregated—this
would allay the fears expressed in the previous paragraph.
175. Current regulation governing funding
and campaigning in a referendum has not yet been tested in a national
referendum. We note the concerns about the possible loopholes
in the provisions of the PPERA relating to the funding of referendum
campaigns. We welcome the Electoral Commission's decision to make
its decision-making relating to designating lead campaign groups
more transparent.
The role of the Government and
political parties
176. Under the PPERA political parties who campaign
in a referendum and spend more than £10,000 must register
with the Commission as permitted participants. Their spending
limit is determined by the share of the vote that they received
at the last parliamentary General Election before the referendum,
and ranges from £500,000 to £5 million. In addition,
as we have noted,[25]
there is a restriction on the publication of promotional material
by central or local government for a period of 28 days before
a referendum.
177. There was some support expressed for the
idea that governments should not enter referendum debates, to
avoid biasing the debate or undermining one side or the other
thanks to a perception of bias. Dr Matt Qvortrup claimed that
"there is an emerging consensus that it is illegitimate for
governments to spend taxpayers' money on partisan information,
or other partisan activities using state apparatus" (p 135).
Nigel Smith stated that governments should take part on the same
footing as all other participants or be removed from the campaign
(p 145). Lord Fraser said that whilst it would be extraordinary
if governments did not take part in a referendum campaign they
should not have an advantage over other participants (Q 113).
178. Several witnesses explained that they thought
that governments would always be engaged in referendum campaigns
because, as Daran Hill put it "essentially British experience
on referenda is that referenda are held on issues within the government
programme" (Q 112).
179. Current regulation regarding the role
of government and political parties in a referendum has not yet
been tested in a national referendum. Whatever role government
and political parties play, it is necessary to ensure that the
referendum process is seen by all to be fair.
Thresholds
180. The level of voter turnout at an election
or referendum is often used as an indication of how seriously
the electorate takes an issue: the result from a low turnout is
usually seen as less legitimate than that from a higher turnout.
Likewise, a clear majority, perhaps over 55 per cent, is seen
as more legitimate and decisive than a narrow victory. Accordingly,
some referendums in some jurisdictions have required either turnout
thresholds or "supermajorities".[26]
The evidence that we received was broadly opposed to both in principle.
181. Turnout thresholds were criticised by Unlock
Democracy because they:
"Can negate the positive, educational impact
of referendums ... If the result is dependent on a certain level
of turnout then those who wish to oppose the referendum do not
need to engage with the debate and make their case to voters,
they merely have to convince people to stay at home. This sets
a dangerous precedent for democratic engagement. There is also
a risk that people who have participated in the campaign and secure
a majority but do not meet the turnout threshold will feel cheated
and that political engagement is ineffectual" (p 19).
182. Thresholds were dismissed by Professor Gallagher
as "unnecessary and undesirable" in most cases (p 120).
Nigel Smith similarly told us that thresholds should be avoided
as far as possible (p 143). Professor Butler made the point
that turnout thresholds are problematic because the "no"
side can defeat a proposal simply by encouraging people to stay
at home, "the thing to do if you are a negative person is
to say, 'Don't vote' because a non-vote is equivalent to a vote
in those circumstances" (Q 17). Baroness Kennedy pointed
to a referendum in Italy where a proposal which required a turnout
threshold had failed to be passed because of a campaign to encourage
people not to vote: "People who were at all ambivalent and
uncomfortable because of the profound nature of the question just
did not vote. That was what happened. It failed because of the
turn-out. The campaign was to not let people come out to vote"
(Q 69). A further argument against a turnout threshold was
advanced by Professor Tierney who, pointing to the Danish requirement
of a 40 per cent turnout, said that "what you would take
from it is that if you create a high threshold it can be very
difficult to get things through" (Q 86).
183. Professor Butler warned of the difficulties
of working out the size of the electorate: "The electoral
register represents only about 90 per cent of the electorate and
about ten per cent of the names are dud names anyway, so what
is the electorate? What about people who are plurally registered
and so on? You have got to get your facts very accurately done
if you have thresholds brought into the argument". He suggested
that this uncertainty was a further argument against turnout thresholds
(Q 17). Dr Wilks-Heeg expressed a strong concern about the
use of electoral registers to provide a voter threshold because
of the inaccuracy of the registers and because they were not designed
to be used for that purpose (p 35).
184. Supermajorities (where a referendum result
is only deemed valid if it has received a specified proportion
greater than 50 per cent of the votes cast) were argued by Professor
Saward to be inherently anti-democratic, breaching the "one
vote, one value" principle (Q 38). Professor Gallagher
dismissed them in his evidence to us: "I do not see any justification
for a requirement that a supermajority of more than 50 per cent
should be required for a proposal to be deemed to have received
the support of the people" (p 122). Professor Tierney
told us that supermajorities were unnecessary in the UK context
and he advocated simple majority decision-making because "the
UK has traditionally not imposed any special majority requirements
for constitutional change and for this reason it is difficult
to see why they would appear in referendums (as they did in 1978/79).
If other aspects of the process are appropriate and transparent
then arguably this issue becomes less important" (p 50).
He also pointed out that it is difficult to argue the case for
supermajorities when they are not required in parliamentary votes
(Q 97). Conversely Dr Qvortrup defended the use of voter
thresholds. He considered that a result should be accepted "as
long as a majority of those eligible (and registered) to vote
have cast a ballot" (p 134). Professor Saward suggested
that a threshold of "somewhere between 50 per cent of the
electorate and the possibly higher figure of the turnout in the
previous General Election" was defensible (Q 38).
185. Michael Wills MP told us that the Government's
view on the use of thresholds was that each referendum should
be judged on a case-by-case basis and that there would sometimes
be a case for a threshold requirement (Q 253).
186. In spite of the weight of evidence against
the general use of either voter thresholds or supermajorities,
some witnesses, and even some of those who were against them in
principle, maintained that on occasion such measures were justified.
187. The first exceptional situation was if the
referendum was seeking to implement a constitutional change. Professor
Tierney argued that "there may be an argument for a threshold
in terms of voter turnout" for referendums on "big constitutional
issues" (Q 97). Professor Saward concurred that "there
is a strong case in the UK for referendums on constitutional changes
with turnout thresholds" (p 15). Professor Graham Smith
agreed (Q 38).
188. The second exceptional situation was in
divided societies such as Northern Ireland. Professor Bogdanor
explained that in a referendum in Northern Ireland "a simple
majority, if composed almost entirely of the majority, Unionist
community, might not be thought sufficient" and that "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" (p 47).
However, Professor Tierney suggested that "referendums are
particularly dangerous ... in divided societies. Northern Ireland
in 1973 and Bosnia in 1992 are examples where simple majority
referendums simply made the situation worse rather than better"
(Q 97). Many countries accordingly require regional "double
majorities" or concurrent majorities for minority protection
reasons: examples of this include Australia where a majority is
required in at least four out of the six states in a national
referendum and Switzerland where for some kinds of votes there
has to be a majority in a majority of cantons (p 16). Some
witnesses suggested that in any future UK-wide referendum it might
be considered necessary to have regional concurrent majorities.
Professor Graham Smith told us "there would be a concern,
for example, in this country if a referendum went through and
it was the South East only that voted en bloc. We might
have to have some sort of regional concurrent majorities"
(Q 38).
189. We recommend that there should be a general
presumption against the use of voter turnout thresholds and supermajorities.
We recognise however that there may be exceptional circumstances
in which they may be deemed appropriate.
Advisory or binding referendums?
190. In Chapter 2 we considered the view put
forward by some witnesses that referendums undermined representative
democracy. A closely-linked issue is whether referendums should
be binding on a sovereign Parliament.
191. Professor Gallagher argued that referendums
should be binding because "an indicative referendum is little
more than an expensive opinion poll. If the electorate knows that
the result is not binding, then there is an obvious temptation
either not to vote or to use the referendum to express a view
on something other than the issue at stake, such as the current
performance of the incumbent government" (p 122). Dr
O'Malley similarly told us "it is important that any referendum
should be binding, otherwise the whole point of it is cast aside"
(p 131). Caroline Morris criticised the advisory nature of
citizen-initiated referendums in New Zealand because "it
has 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. This increases the
likelihood of political disengagement" (p 127).
192. A number of witnesses took the opposite
view and pointed out that because the UK does not have a written
constitution "as a matter of constitutional law a referendum
cannot be binding in this country" (p 134) and the Government's
evidence supported this. Michael Wills MP told us "I think
the crucial thing here is that the referendum does not bind Parliament.
In the end Parliament will make its own decision on that"
(Q 253). Dr Maija Setälä, Academy Research Fellow,
Department of Political Science, University of Turku, told us
that, "the advisory character of referendums appears to be
congruent with the idea of parliamentary sovereignty" (p 138).
193. Despite referendums in the UK being legally
advisory, a number of witnesses pointed out that in reality referendums
might be judged to be politically binding. Dr Setälä
argued that "in established democracies, it seems to be very
difficult for parliamentarians to vote against the result of an
advisory referendum" (p 139). Dr Blick similarly stated
that "the political pressure upon a government seeking to
ignore the outcome of a referendum would be immense" (p 111).
More specifically Professor Bogdanor explained that "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" (p 47).
194. In practice, however, the UK Parliament
can square the circle by passing legislation which does not come
into effect until a referendum is held, or by agreeing to be bound
by the result in enabling legislation. Professor Bogdanor thought
that it would be possible in the UK 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" (p 47).
195. Related evidence concerned whether a referendum
should be held before or after legislation on the referendum topic
had been passed. Peter Browning told us that "it should precede
the proposed parliamentary statute about which it is being held
as then it will help inform parliament's decision [on the legislation]"
(p 115). Professor Bogdanor, whilst acknowledging that this
was not a simple decision, recommended that a referendum should
be held before Parliament passed legislation on the topic to save
parliamentary time (Q 83). On the other hand, Dr Qvortrup
argued that because referendums are a constitutional safeguard
it is preferable that referendums are held after the third reading
of a bill (p 135). Professor Hazell said that there was no
universal firm answer (QQ 12-13) whilst Unlock Democracy
suggested that pre-legislative referendums should be indicative
and post-legislative referendums should be binding (pp 21-22).
196. Professor Gallagher concurred that the referendum
should be held first but pointed to the facultative system used
in Switzerland whereby it was possible for citizens to challenge
laws by referendum after they had been passed (p 121).
197. We recognise that because of the sovereignty
of Parliament, referendums cannot be legally binding in the UK,
and are therefore advisory. However, it would be difficult for
Parliament to ignore a decisive expression of public opinion.
Overall summary of regulatory
framework and the role of the Electoral Commission
198. The PPERA was praised by some witnesses:
Dr Qvortrup said that, "in international perspective, PPERA
is seen almost as the gold standard in referendum regulation"
(p 133); Navraj Singh Ghaleigh commended it because it ensured
that "the preponderance of income, expenditure and political
elites do not determine outcome" (p 141); Jenny Watson
reassured us that, "broadly speaking the framework works"
(Q 176).
199. Despite this praise for the PPERA, it remains
the fact that it has not yet been used as the legal basis for
a UK-wide referendum. Unlock Democracy thought it was not able
to judge the effectiveness of the legislation because "to
date there has only been one referendum campaign run under the
PPERA regulations and we do not feel this is enough experience
to be able to judge the effectiveness of the legislation"
(p 20). Professor Butler told us that the PPERA "did
not seem to be very realistic. How it would get deciphered, if
we did decide to have a referendum on Europe or human rights or
anything like this, you would actually go to the 20 clauses in
the PPERA and you would find it would not be a description of
what was actually going to be happening out on the ground. It
would not be a good guidepost at all" (Q 8).
200. Although the PPERA has not been tested in
a UK-wide referendum, a number of witnesses thought that the 2004
North East referendum showed that both the Act and the Electoral
Commission could function effectively (QQ 118, 201). On the
other hand Professor Hazell pointed out that the North East referendum
in 2004 was not as high-profile or politically charged as a nationwide
referendum on a subject such as membership of the euro. A UK-wide
referendum would, he argued, therefore be more challenging for
the Electoral Commission (QQ 14-5). The Electoral Commission
told us that the North East referendum was run well. It analysed
its experiences after that referendum and wrote to the Government
requesting changes to be made to the legislative framework for
referendums. The changes requested were (pp 80-81):
· Creation of a statutory Regional Counting
Officer role;
· The Chief Counting Officer to have a power
of direction in primary legislation over both Regional Counting
Officers and Counting Officers to enable efficient organisation
and co-ordination of the referendum;
· The restriction on the publication of
promotional material by central or local government to apply from
the start of the referendum period;
· The Commission to have powers to promote
public awareness of the registration and voting processes at a
referendum;
· The Commission to have a discretionary
power to provide information to voters on the referendum options
if it is unable to appoint designated organisations;
· Aggregation of spending limits for permitted
participants who operate to a common plan to bring them into line
with the rules on spending by third parties in election campaigns.
This would prevent participants circumventing spending limits
by registering separately but acting together;
· A generic Conduct Order to set out the
detailed regulations governing the administration of referendums
held under the PPERA to ensure clarity and consistency for those
involved in planning and running referendums and to allow them
to develop a shared understanding of the rules that would apply
to any referendum well in advance.
201. A number of other witnesses highlighted
the need for similar changes. Some of these issues were addressed
by the Government in amendments to the Constitutional Reform and
Governance Bill which is currently going through Parliament but
at this stage in the Parliamentary session it remains to be seen
whether this Bill will become law. Michael Wills MP indicated
that, whilst the Government thought the PPERA was an effective
one, they would keep it under review and were open to suggestions
for improving it (Q 239).
202. Any assessment of the overall regulatory
framework relating to referendums and the role of the Electoral
Commission are theoretical as neither has been tested in a UK-wide
referendum. We therefore recommend that after the next UK-wide
referendum:
· The Electoral Commission should analyse
its experience (as it did for the 2004 North East referendum)
and make recommendations for change to the regulatory framework
and its role; and
· There should be thorough post-legislative
scrutiny of the PPERA at an early date.
203. We are sympathetic to the changes to
the legislative framework suggested by the Electoral Commission
following its analysis of the 2004 North East referendum. We recommend
that the Government take steps to ensure that they are implemented.
23 A multi-option question is one which has more than
two possible responses for voters to choose. It is an alternative
to the "yes" or "no" option format. Back
24
Regional Assemblies (Preparations) Act 2003. Back
25
See para 165. Back
26
Examples include the British Columbia referendum on the electoral
system, which required a 60 per cent yes vote; and Italian 'abrogative'
referendums which require a 50 per cent turnout. Back
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