Memorandum by Peter Browning
This paper gives my responses to the ten questions
listed in the Committee's call for evidence published on 20 November
Q1 What are the strengths and weaknesses of
the referendum as a democratic and constitutional tool?
Referendums could have the great benefit of
making the political system more democratic and more legitimate.
At a time when public trust in this system is probably lower than
ever in living memory, the greater use of referendums could be
an important means of restoring faith in British democracy and
underpinning the constitution. They give the citizens a direct
say in deciding policy and thus make the system more democratic.
Introducing direct democracy into the political system, however,
challenges the indirect, representative democracy that has been
the essence of UK democracy. If the people vote one way, their
representatives another, who should prevail, who is sovereign?
This issue needs very careful consideration.
Perhaps the main weakness of referendums is
the need for public participation. Most people are prepared to
vote every four or five years to choose their representatives,
whether national, local or, in Scotland, Wales and Northern Ireland,
regional. Even then turnout varies considerably, depending on
the perceived importance of the election. Even then, turnout tends
to be falling. On the evidence of local and regional referendums
held in the UK in recent years, it is doubtful whether voters
would turn out to vote in similar numbers in referendums. Low
turnout would weaken the legitimacy of the result and thus of
the policy decided by the referendum.
Another weakness of referendums is the danger
that they can besome would say are alwaysmanipulated
by elected politicians to achieve their desired goals. Special
interests and the mass media will also have their say in the referendum
campaign. Thus referendums are rarely, if ever, the expression
of the will of the people, free from influence by politicians
and minority groups. This danger means that referendums, far from
actually strengthening democratic politics, have the opposite
effect, adding to public disillusionment with the political process.
Q2 What assessment would you make of the UK's
experience of referendums? What positive or negative features
of this experience would you highlight?
The experience has been mixed. At the local
government level, referendums have usually been used with regard
to directly-elected mayors and mainly at the behest of central
government. Of some 35 such referendums since 1997, only
one-third voted for direct election of mayors. In Doncaster and
Stoke-on-Trent, the experience of having mayors chosen directly
by the people has not been a success. There have been some local
referendums on policy issues, most notably in Edinburgh in 2005 on
whether to have a traffic congestion charge; here 74% of the 62%
of voters who participated voted against a congestion charge.
The 1972 Local Government Act does allow people living in
parish councils in England and community councils in Wales to
request these councils to hold referendums but there are few examples
of the Act being used in this way.
At the regional level, referendums have been
used to legitimise constitutional change, mainly with regard to
devolution in Scotland, Wales, Northern Ireland and one English
region. Two further referendums planned for 2004, in Yorkshire
and Humberside and North West England, were cancelled a few months
beforehand. All but two referendums (Scotland in 1979 and
North East England in 2004) have supported changes which the government
had planned. Whether the reforms would have been any less legitimate
had the referendums not taken place is impossible to judge.
There has been only one national referendum,
in 1975, on whether the UK should stay in what was then the European
Community. The vote resulted in a clear majority in favour of
staying in the Common Market. Joining this supranational body
was such a significant change in the position of the UK that the
referendum almost certainly did help ensure popular acceptance
of EC membership. Since then, other national referendums have
been proposed by political parties, most notably by Labour in
1997 on the voting system for UK elections and in 2004-05 on
the EU Constitution. The latter has proved especially controversial,
particularly when the Labour government refused to hold a referendum
on the 2007 Treaty of Lisbon which replaced the EU Constitution.
In this case the failure to hold the referendum made the Lisbon
Treaty less legitimate with some sections of the British people.
It is almost impossible to imagine the UK adopting the euro as
its currency without having a referendum.
Some would argue that these experiences show
Clement Attlee was correct when in 1945 he called referendums
a device "so alien to all our traditions". Since 2000 just
one regional referendum has taken place while four have been cancelled
or postponed. Incorporating referendums into British political
life has proved particularly problematic.
Q3 How does, and how should, the referendum
relate to the UK's system of parliamentary democracy?
The fundamental principle of the UK system of
government is the legalif not the politicalsovereignty
of parliament. This principle has been challenged by the UK's
membership of the European Union (EU); some commentators believe
that this membership in effect means the end of that legal sovereignty
while others argue it is still intact. Whether the UK parliament
is sovereign or not in relation to the EU, its sovereignty within
the UK is certainly threatened by the use of referendums. Referendums
put the people before parliament. The sovereignty of parliament
becomes the sovereignty of the people. The problem arises with
national referendums and regional referendums on regional independence.
Thus if referendums of these types do become a regular feature
of British politics, they do pose problems for the position of
parliament. This is why the scope and processes of referendums
need to be considered very carefully.
Q4 Is it possible or desirable to define which
issues should be subject to a referendum?
It could be possible but it would not be desirable.
Democratic politics requires an open debate on all issues and
how they are best decided. It is more important to define the
processes by which issues might be subject to a referendum.
Q5 Should "constitutional issues"
be subject to a referendum? If so, how should "constitutional
issues" be defined?
Major constitutional issues, those which concern
the fundamental structure of politics and government, 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. This
was the reason for holding regional referendums on devolution
to Scotland, Wales and Northern Ireland. In recent years, however,
there have been important constitutional changes which no one
proposed should be subject to a referendum. These include the
1998 Human Rights Act and the 2005 Constitutional Reform
Act. (The latter is especially noteworthy as it had not been included
in Labour's 2001 election manifesto and thus lacked a democratic
mandate.) And no one is suggesting a referendum on the issue of
making the House of Lords fully elected. Yet changing the UK's
voting system and introducing the euro currency will almost certainly
require referendums to go ahead. Why are referendums proposed
for some constitutional issues and not for others? They are decided
by the balance of political forces, almost always within the governing
party. If those political forces could be widened to require a
free vote in the House of Commons, then that is probably the best
way of deciding the topics on which referendums should be held.
Q6 Is the Political Parties, Elections and
Referendums Act 2000 (PPERA) an effective piece of legislation?
How, if at all, could it be improved?
The Act covers national and regional referendums
only and makes the Electoral Commission responsible for the conduct
of referendums. Thus this question is better answered as part
Q7 Is the role of the Electoral Commission
in regard to referendums, as set out in PPERA, appropriate? What
assessment would you make of the Electoral Commission's work in
relation to referendums?
The role of the Electoral Commission, according
to the Act, would seem broadly appropriate. The practice of this
role raises concerns, however. There has been one referendum since
2000 for which the Electoral Commission has had responsibility
and that is the all-postal referendum in North East England in
November 2004. A year later, the Electoral Commission published
a report on the referendum which included nine recommendations
about future referendums. It is unclear whether the government
has acted to implement any of these changes. If it hasn't done
so, then the Electoral Commission, which reports to parliament,
would appear to be ineffective in influencing the administrative
and legal framework essential to the proper conduct of referendums.
This concern is further reinforced by an interview given to The
Times on 24 April 2004 by the then chairman of the
Electoral Commission, Sam Younger. He identified a series of loopholes
in PPERA concerning how much money could be spent in a referendum
and by whom. He said, "The legislation is flawed. There appears
to have been an oversight and it is something we are making representations
to the government about". Again, it is hard to find any evidence
that the government has acted to close these loopholes. The Electoral
Commission needs to be more effective. It needs greater status,
greater powers. It should more clearly be a part of Parliament.
As the Audit Commission is to government expenditure so the Electoral
Commission should be to democratic politics.
Q8 What comment would you make on the key
components of a referendum campaign such as
Whether or not there should be any
threshold requirements, eg in terms of the percentage of the vote
required, or the level of turnout required, for a vote to be carried;
There probably should be a threshold in terms
of the level of turnout required for a vote to be carried, as
was the case in the 1979 referendum on Scottish devolution.
The wording of the referendum question
(including the appropriateness of multi-option questions);
The Electoral Commission's duty to comment on
the wording of the referendum question should continue; the government's
power to ignore the Electoral Commission's comments should be
There should be no multi-option questions as
almost certainly they will confuse many voters.
The design of the ballot paper;
This needs to be as clear and as simple as possible.
Whether there should be formal, constitutional
triggers for referendums;
I don't know what "formal constitutional
triggers" look like. Every national or regional referendum
must require an Act of Parliament, approval of which must be by
a free vote of MPs.
Whether a referendum should be indicative
Given the concept of parliamentary sovereignty,
referendums should be indicative in law. In politics, however,
even an indicative referendum will bind the government.
Whether a referendum should ask broad
questions of principle or refer to specific legislation;
They should refer to specific legislation and/or
specific policies. It is hard to think of examples of "broad
questions of principle" which could usefully be subject to
a referendum vote, which would not be better being left to debate
in parliament. Even the question of a reformed voting system for
the UK parliament, which might be the subject of a referendum
before too long, would be better expressed in terms of a specific
voting system rather than whether the voting system should be
Whether a referendum should precede
or follow statutory enactment;
It should precede the proposed parliamentary
statute about which it is being held as then it will help inform
parliament's decision on the law.
Campaigning organisations and the
funding of campaigns;
The loopholes mentioned in answer to Q7 concerned
this issue. There is much work to be done in order to ensure that
the funding of campaigns does not favour one side at the expense
of the other. It needs more detailed consideration than can be
given here. The current laws on campaigning organisations and
campaign funding need to be changed.
Public information campaigns and media
In the 1975 national referendum, if I remember
correctly, the government published two pamphlets, one setting
the case for remaining in the EEC, the other the case against.
The government's official position was to recommend staying in.
The print media was also in favour of staying in.
Media coverage of referendums influences the
outcome of the referendum, though to what extent is impossible
to quantify. Future referendums will be covered by a greater range
of media, old and new, especially the internet. Even compared
with 2004, when the last regional referendum was held, the latter
has grown in importance. The print media, however, continue to
lead the news agenda, despite the internet and the public service
broadcasting requirement imposed on the terrestrial television
channels. It therefore remains important that public information
campaigns put both sides of the argument in a dispassionate manner.
However old-fashioned they now seem, official pamphlets detailing
the cases for and against the referendum issue still have an important
part to play in the referendum campaign.
Party political activity;
Issues which become the subject of referendums
usually divide parties and attract cross-party support. A referendum
on the euro would be one such example of this tendency. Thus individual
political parties are less effective in referendum campaigns.
Given the continuing decline in membership and support for the
main parties and the rise of single interest groups (which also
include single interest political parties such as UKIP), the main
parties might struggle even more to make their voices heard in
The main issue is the influence on the campaign
of the party in government. The UK has a system of party government.
Even if divided, that party can use its control of the government
machine to its advantage, which gives power to the party's frontbench
ministers, as was seen in the 1975 campaign.
This danger could well be offset by the unpopularity
of the party in power. Voters often use a referendum vote to express
their views of the governing party rather than the specific issue.
However, the advantage the party in government might gain from
its position in power is an issue which needs to be addressed.
If the public believes that party is manipulating public opinion,
it could well become even more cynical about referendums and the
whole democratic process.
Whether referendums should coincide
with other elections or not;
In order to reduce the danger of voters voting
on party political lines, referendums should not coincide with
The strengths and weaknesses of in-person,
postal or electronic forms of voting.
Voting in person is best, postal voting needs
more careful monitoring and electronic voting is not yet secure
enough to be trusted.
Q9 How does the referendum relate to other
tools, such as citizens' initiatives? Should citizens be able
to trigger retrospective referendums?
If the UK is to make greater use of referendums
as a form of direct democracy, then it should allow citizens the
opportunity to decide on referendum issues. Part of the problem
with the current use of referendums is that they are "top
down", decided onor avoidedby party politicians.
Whether local, regional or national, referendums should take place
if (a) a certain minimum percentage of the voters of that constituency
request it and (b) parliament supports that request. The involvement
of parliament provides some kind of check on the "bottom
up" process, which might be taken over by special interests.
The idea of retrospective referendums has nothing
to commend it, however, even if accompanied by various safeguards.
Presumably such referendums would apply to laws and not policies.
The best form of retrospective vote would be a general election.
Retrospective referendums would give special interests and minority
groups the potential to block almost all change.
The greater danger of retrospective referendums,
however, comes from governments requiring them rather than the
people, as shown by the example of Ireland and the European Union.
Governments need to accept the results of referendums just as
much as the people are required to.
Q10 How would you assess the experience of
other countries in relation to the use of the referendum? What
positive or negative aspects of international experience would
The state of California serves as a warning
of the dangers of too much direct democracy while Switzerland
would seem to provide an example of a state which has successfully
combined direct and indirect democracy. The political culture
of a state will determine whether referendums are successful forms
of democracy or not. The political culture of the UK combines
deference and dissent in an unusual mix. The less deferential
attitudes of many modern voters mean that referendums could become
a useful means of expressing dissent and reconciling different
interests. So far, they have been used in an ad hoc way
to benefit politicians. It is important that from now on they
are used more systematically and for the benefit of the people.