Memorandum by Dr Andrew Blick, Federal
Trust for Education and Research
1. What are the strengths and weaknesses of
the referendum as a democratic and constitutional tool?
1. The main strength of the referendum as
a democratic and constitutional tool is that it enables all those
on the electoral register within a specific area to participate
directly in the taking of decisions that relate to the workings
of the constitutional system itself. This approach is of particular
value when there may not exist a representative institution appropriate
for the taking of a particular decision. For instance, the holding
of referendums prior to the establishment of devolved tiers of
governance in Scotland, Wales, Northern Ireland and London was
appropriate since no such bodies existed in these territories.
The only clear means of taking a democratic decision within these
territories as a whole was through the holding of referendums.
2. The main general weaknesses of the referendum
as a democratic and constitutional toolsome of which are
considered in more detail beloware as follows:
(a) There is a tension between its use and the
basic principle of representative democracy;
(b) It can entail the oversimplification of a
complex issue into a simple "yes" or "no"
(c) It does not necessarily settle an issue,
and can serve to create a demand for more referendums; and
(d) Rather than widening effective public participation
in the political process, it might serve to afford extra influence
to already powerful groups such as media and commercial interests.
3. The more UK-specific weaknesses of the
(a) There are tensions between it and UK constitutional
principles including that of collective Cabinet responsibility;
(b) The UK lacks a codified constitution within
which the role of the referendum might be clearly defined; and
(c) The referendum is often conceived of within
the UK not as a means of enhancing democratic decision-taking,
but as a means of placing a brake on certain developments, most
notably increased participation in European integration; or at
local level on preventing increases in council tax above certain
2. What assessments would you make of the
UK's experience of referendums? What positive or negative features
of this experience would you highlight?
4. A positive feature of referendums in
UK history is that they can contribute to the establishment of
institutions, such as the Scottish Parliament and Welsh Assembly,
which have successfully commanded a high degree of legitimacy
and become established features of the un-codified UK constitution.
The Northern Ireland peace process as well can be seen as having
benefited from the referendum held (on both sides of the border
in Ireland) on the Belfast or "Good Friday" Agreement.
5. But the way in which referendums relating
to issues of devolution have been handled reveals a series of
confusions surrounding their role. To varying extents referendums
since 1997 have led to alterations to the constitutional
configuration of the UK, but the UK electorate as a whole has
not been consulted. In the case of the Irish referendum, voters
in the Republic of Ireland were given a direct say, while UK voters
outside Northern Ireland were not. Moreover, of the nine English
regions, only the electorates of London and the North East have
been consulted over whether they want devolution to their regions.
All of the referendums on devolution were brought about on the
initiative of the UK government; yet at local level in England
there is provision for referendums on the introduction of directly
elected mayors to be triggered by local voters. Further confusion
surrounds the issue of whether additional referendums are required
for the extension of devolution. The Government of Wales Act
2006 granted legislative powers to the Welsh Assembly, without
a referendum being held; but the Act also provided for a further
extension of devolution which was dependent upon agreement in
a referendum, which the current Welsh government is committed
6. Consideration of the only UK national
referendum to date, on continued membership of the European Economic
Community in 1975, illustrates certain negative features of this
device. There were constitutional problems. As well as the difficulty
of reconciling the holding of a referendum with the principle
of collective Cabinet responsibility, dilemmas arose regarding
the activities of ministers who were engaged in various European
negotiations but were opposed to continued membership of the EEC;
the maintenance of Civil Service impartiality; and the appropriate
role of special advisers to ministers.
Debate at the time of the vote tended to focus on economic aspects
of the commitment at the expense of the constitutional issues
involved, a weakness to which those who disagreed with the "yes"
vote were subsequently able to point when challenging the legitimacy
of the referendum. Finally persistence of a lack of consensus
about the role of the UK within Europe; and the present-day strength
of so-called "Euroscepticism", show that the 1975 referendum
did not produce a final decision, despite its clear result.
3. How does, and how should, the referendum
relate to the UK's system of parliamentary democracy?
7. At present the result of a referendum
could not in formal terms be binding upon Parliament. Even if
Parliament had committed through an Act of Parliament to abide
by the outcome, it could in theory repeal such an Act. However
the political pressure upon a government seeking to ignore the
outcome of a referendum would be immense.
8. Parliament could become bound in practice
not only to abide by the outcome of referendums, but to the holding
of them in certain circumstances. The Conservative Party proposal
to, in the words of David Cameron, "prohibit, by law, the
transfer of power to the EU without a referendum" would introduce
a new practical constraint upon the freedom of action of a government
(and arguably undermine the parliamentary sovereignty that advocates
of such a measure might claim to be defending). Though in theory
a future Parliament could repeal such a statute, there might be
a strong political imperative not to do so.
9. Finally there are certain institutions
such as the Scottish Parliament which were established following
referendums and have become an entrenched part of the un-codified
UK constitution. Though it might in theory possess the power to
do so, the Westminster Parliament could not in practice abolish
or even significantly alter them without resort to a further referendum.
10. The ideal relationship between mechanisms
such as referendums and representative democracy in general is
in the view of the Federal Trust that the former can in some circumstances
enrich the latterhelping to make it more responsive and
better informedbut they should not supplant it.
4. Is it possible or desirable to define which
issues should be subject to a referendum?
11. The definition of which issues should
be subject to a referendum is an essentialif complextask
which should be undertaken before any further move to increase
the use of this deliberative mechanism.
12. There have been a number of policy decisions
over which it might be argued that referendums should have been
held, but they were not, and no demand was made that they should
be. For instance, major constitutional changes have been introduced
in the UK since the 1975 European referendum without referendums
taking place. They include the passing of the Human Rights
Act 1998 and the Freedom of Information Act 2000; and
the establishment of the UK Supreme Court, which became active
in 2009. As already noted, the devolution programme enacted since
Labour took office in 1997 has never been subject to a full
UK-wide referendum, but only in the prospective devolved territories
(and the island of Ireland as a whole for the Belfast Agreement).
13. At present discourse around UK-wide
referendums seems to be focussed largely on issues associated
with the EU (the most obvious exception being the recent Labour
pledge to hold a referendum on electoral reform if returned to
office at the 2010 General Election). This tendency can be
traced to the calls for a referendum which culminated in the vote
of 1975; and was sustained subsequently by such groups as the
Referendum Party and its demand for another referendum on continued
membership; the commitment of the main parties not to join the
single currency without a referendum; the more recent debate about
the EU Constitution then Treaty of Lisbon and whether it required
a referendum; and finally the Conservative Party commitment to
an Act of Parliament requiring it to hold referendums on the further
sharing of sovereignty.
14. This focus on the EU and the apparent
rationale behind it can be challenged in a number of ways. 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.
15. If the idea of further sovereignty sharing
requiring a referendum takes hold, it is not clear whether it
would apply to the accession of new EU member states, which entails
further sharing of sovereignty. Such a practice could create substantial
problems for the functioning of the EU as a whole.
5. Should "constitutional issues"
be subject to a referendum? If so, how should "constitutional
issues" be defined?
16. This question is central to the subject
of referendums in the UK. Arguably the most appropriate use of
referendums would be in relation to "constitutional issues";
and most referendums which have been held to date have been over
matters which could be regarded as constitutional.
17. But it should be noted that other methods
exist of introducing "hurdles" which must be cleared
in order to alter the constitutional settlement of a country,
such as a requirement for the support of more than a simple majority
in the legislature.
18. Moreover, in the UK context, the constitution
is not codified. Consequently, 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.
19. In other words, 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.
20. The establishment of a formal settlement
of this sort would be a substantial task, and would presumably
require the use of deliberative mechanisms, probably including
final endorsement (or rejection) by a UK-wide referendum. It is
perverse to consider establishing the principle that a change
to the constitution demands explicit democratic assent of some
kind, without the constitution as a whole having an equivalent
form of legitimacy.
3 January 2010
1 As revealed in official files made available in the
National Archive/Public Record Office 30 years later, such
as: BA 7/10 "EEC Referendum guidelines for conduct to
Ministers and special advisers". Back