Memorandum by Dr Matt Qvortrup
Thank you for asking me for advice on the issue
of referendums. It is an honour to be able to help you. I have
carefully considered the questions, and I have endeavoured to
answer them as thoroughly as the limited space permitted. Please
do not hesitate to contact me if you require further elaboration
on the questions.
What are the strengths and weaknesses of the referendum
as a democratic and constitutional tool?
The strengths are that it allows the people
to have a final say on fundamental changes affecting the constitution.
It has become standard in most democratic countries to require
referendums before constitutional changes. The problem though
is that the voters are sometimes uninterested in the often technical
constitutional issues, eg as has been the case in several recent
Irish referendums (the turnout was below 35% in 2001).
What assessment would you make of the UK's experience
of referendums? What positive or negative features of this experience
would you highlight?
The positive experience is that it allowed the
voters to have a final say. However, as the low turnout rates
in Wales 1997 and the North East 2004 shows, the interest
in the issue was lowpossibly because the voters did not
like the options on offer. I would suggest that referendums be
made optional, so that the voters can decide when or if to have
a referendum. This would ensure that referendums are only held
when there is a public demand. This system has worked tolerably
well for the provision that there must be a citizen initiated
referendum on whether to have directly elected mayors in England.
How does, and how should, the referendum relate
to the UK's system of parliamentary democracy?
I think this question has been answered by history.
The debate as to whether referendums are compatible with a Diceyan
constitution was raised by Wilson in the House of Commons in 1967but
when it became opportune he changed his mind. Referendums are
nowto use a somewhat technical term"a convention
of the constitution". Further the argument that they are
not compatible with the doctrine of the Sovereignty of Parliament
has been eroded by the practice of referendums in this countryas
well as by extensive usage of referendums in New Zealand (a country
without a written constitution and explicit adherence to the principle
of the sovereignty of Parliament).
Is it possible or desirable to define which issues
should be subject to a referendum?
I would argue that it is up to the people to
decide the issues. In some countries, eg Denmark there is a ban
against referendums on taxation issuesbut there can be
referendums on foreign treaties. In Italy the reverse is true.
So the evidence is mixed, butneedless to sayreferendums
should be avoided on issues affecting human rights and named individuals.
Is the Political Parties, Elections and Referendums
Act 2000 (PPERA) an effective piece of legislation? How,
if at all, could it be improved?
Of course, one should never be complacent, but
in international perspective, PPERA is seen almost as the gold
standard in referendum regulation.
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
This is difficult to say as the only experience
we have is the 2004 referendum. I would say that the jury
is still out as regards the role of the Electoral Commission in
What comment would you make on key components
of a referendum campaign, such as:
1. Whether or not there should be any
threshold requirements, for instance in terms of the percentage
of the vote required, or the level of turnout required, for a
vote to be carried. Thresholds are rare but they do exist.
It is common but inaccurate to cite the Canadian Clarity Act as
a precedent for supermajority requirements. As the example is
often mentioned, it is instructive to give a brief description
on this model. After the 50.58% to 49.42% result in Quebec in
1995, the House of Commons in Canada sought to establish that,
a future referendum was not won by a narrow margin. The act, however,
stops short of recommending a specific majority. See Clarity Act,
2000, c. 26 [Assented to 29 June 2000] 2. (1) The House
of Commons shall consider "whether, in the circumstances,
there has been a clear expression of a will by a clear majority
of the population of that province that the province ceases to
be part of Canada". Factors for House of Commons to take
into account include (2) (a) the size of the majority of valid
votes cast in favour of the secessionist option; (b) the percentage
of eligible voters voting in the referendum; and (c) any other
matters or circumstances it considers to be relevant." A
better example of a Supermajority, albeit a small one, was used
in 2006 in Montenegro (a referendum that has become the gold
standard of best practice); the law stipulated that independence
be approved if supported by 55% eligible to vote. (The total turnout
of the referendum was 86.5%. 55.5% voted in favour and 44.5 were
against breaking the state union with Serbia. Another example
is St Kitts and Nevis in the Caribbean. Under the constitution,
Nevis has considerable autonomy and has an island assembly, a
premier, and a deputy governor general. Under certain specified
conditions, it may secede from the federation. In June 1996, the
Nevis Island Administration under the concerned citizens' movement
of Premier Vance Amory announced its intention to do so. Secession
requires approval by two-thirds of the assembly's five elected
members and by two-thirds of voters in a referendum (Art 38.1 (b).
After the Nevis Reformation Party blocked the bill of secession,
the premier called for elections for 24 February 1997. Although
the elections produced no change in the composition of the assembly,
Premier Amory pledged to continue his efforts toward Nevis' independence.
In August 1998, a referendum on the question of independence for
Nevis failed and Nevis presently remains in the Federation. The
March 2000 election results placed Vance Armory, as head
of the CCM, the leader of the country's opposition party. In most
other referendums (e.g. East Timor 1999, Malta 1955, the referendums
on independence for former Soviet States 1990) there were no special
majority requirements. Special majorities and turnout requirements
were used in Scotland in 1979. The outcome was a rejection of
the proposal for self-government, although a majority had voted
in favour. The result exacerbated antagonisms. The method of voting
must be as simple as possible, to allow maximum effective participation.
In conclusion, a result endorsed by 50% of those voting plus one
should be accepted, as long as a majority of those eligible (and
registered) to vote have cast a ballot.
2. The wording of the referendum question
(including the appropriateness of multi-option questions).
The experience tells us that the wording of the question is of
little importance. E.g. in 1980despite the employment of
pollsters and rudimentary focus-groupsthe secessionists
were not able to win despite having chosen a very loaded question.
As for multi-option referendums, they have been used in Sweden
in 1955 and in 1980, on the first occasion, when there was
a clear majority, the result was positive (the same was true in
New Zealand in the early 1990s and in Puerto Rico in 1993). But
more often than not it results in competing optionswith
no one receiving support (eg as in the case in Sweden in 1980).
So generally, multi-option referendums confuse matters and detract
from the major attraction of the referendum, namely that it provides
a clear choice.
3. Whether there should be formal, constitutional
triggers for referendums and whether a referendum should be indicative
or binding. As a matter of constitutional law a referendum
cannot be binding in this country. If we were to have a written
constitution (and I might personally have reservations about this)
there would normally be formal constitutional triggers for a referendum.
It is possible to have constitutional triggers for a referendum
under our system. In New Zealand changes to the electoral laws
are entrenched and require a referendum before they are changed.
A.V. Dicey the constitutional lawyer suggested that referendums
should be held before changes to fundamental parts of the constitution.
The problemas he admitted wasthat this Act could
4. Whether a referendum should ask broad
questions of principle, or refer to specific legislation.
There are examples of both. In 1998 there was reference to
a special agreement (the Good Friday Agreement).
5. Whether a referendum should precede
or follow statutory enactment. There areonce againexamples
of both. In 1997 the legislation on devolution was pre-legislative,
whereas in the referendum on the Good Friday Agreement the referendum
was held to ratify a decision. Post legislative referendums are
the most common (by a factor of 8 to 1). This is possibly
because referendums are seen as final decisions. From a theoretical
perspectiveie one that stresses that the referendum is
a constitutional safe-guardit is preferable that referendums
are held after the third reading of a Bill.
6. Campaigning organisations and the
funding of campaigns. Public information campaigns and media
coverage and Party political activity; This is a vast topic worthy
of a doctoral thesis. But the general principle is that referendums
are not party political contests but (as was the case in 1975)
a public vote that goes beyond party lines. As a result of this
it is necessary to secure that both sides get a fair hearingand
it might be necessary to have public funding. I have divided my
answer to this in two:
In referendums around the world, concerns are
often raised about the government using public funds to support
a favoured position, when the perceived goal is for people to
decide without politicians biasing their thought process. In 1994,
the Austrian government spent considerable sums on a pro-EU campaign,
but without violating Austrian election and referendum laws. The
same has been true, more recently, in Spain where the government
is reported to have spent considerable amounts of public monies
on a (successful) campaign in support of the European Constitution.
In other countriesmost notably in Irelandsimilar
examples of government spending in support of a proposition have
been ruled illegal by the courts. In an often-cited case from
Ireland in 1995, an Irish MEP to the European Parliament argued
that the government had breached the Irish Constitution by spending
public funds on aspects other than the impartial organization
of the process. While the Supreme Court held that: "The Government
is clearly entitled to spend money in providing information
that] the Government, as such, is entitled to campaign for the
change and the individual members of the Government are entitled
either in their personal, party or ministerial capacities to advocate
the proposed change", it ruled that "the Government
must stop short of spending public money in favour of one side
which has the consequence of being to the detriment of those opposed
to the constitutional amendment".
Although legally non-binding, this judgment
has inspired legislation in both Ireland and elsewhere. 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.
The issue of whether there ought to be a ceiling
on campaign expenditure is contentious. Some argue that expenditure
ceilings keep costs within manageable limits, ensure that referendums
cannot be "bought" by the richer side, and increase
public confidence in the result. Others contend that ceilings
prevent a truly effective information campaign.
This is not a conclusive debate. Many argue
that the outcome of the referendum seems to be driven by other
structural factors, such as the economy, the length of tenure
of the respective governments and other factors.
Some doubt the importance of money in ballot campaigns, though
it has been reported that "negative" spending in many
cases has been successful.
Still, restrictions on expenditures in ballot campaigns are common:
In the 1970s, in the run-up to the first Qu
bec referendum on "sovereignty association",
the provincial Parliament restricted campaign expenditure, and
mandated that two campaigns be established representing each side
of the argument.
Quebec's Minister of State for Electoral and Parliamentary Reform,
in a 1977 paper, noted that the regulations it had passed
were inspired by Great Britain's experience with a referendum
in 1975, which it held up as an "invaluable guide",
reflecting a "deep-rooted sense of fair play."
In the more recent past the UK Labour government
has in turn enacted legislation based on the Qu
bec Act, namely The Political Parties, Elections
and Referendum Act 2001 (PPERA). PPERA also introduced
limits on campaign spending, and due to its comprehensiveness,
this Act is often cited as a key reference point in debates about
referendum regulation, internationally.
The restrictions on campaign spending are as follows (Sections
117-118):v Similar provisions exist in New Zealand under the Citizen
Initiated Referenda Act 1993. Under this act, it is an offence
to spend more than $50,000 promoting the petition (at the
qualification stage), and to spend more than $50,000 promoting
an answer to the referendum. As in the UK and Australia, what
an organisation is spending on advertising in relation to the
petition or referendum must be reported to the Chief Electoral
Whether referendums should coincide with other
elections or not
The practice is varied. A case can be made for
the view that referendums on the same day as elections muddies
the political watersand make voters focus on something
else. This is a valid objection, which can be raised against referendums
in American states (where there are often several referendums
on the same day as electionsand hence "a drop-off"
as voters get tired of voting).
However, Britain cannot be compared to California
or Switzerland. The referendum is unlikely ever to become part
of the political woodwork in the way that it is in the aforementioned
cases. If referendums are held on the same day as elections in
countries where referendums are relatively rare, there is very
little that suggests that the voters get tired of votingor
even let their decision be influenced by their decision to vote
for a particular party. For example, in 1959 Eamon de Valera
was elected presidentat the same time he campaigned for
the abolition of Proportional Representation (and the introduction
of First-Past-the-Post). While he won the presidency handsomely,
he lost the latter by a clear margin. The voters, in other words,
are capable of distinguishing between measures and men. Sure,
the turnout in referendums tend to be marginally lower than in
candidate elections (more people vote for candidates than for
or against propositions), but turnout in referendums held on the
same dates as elections tend to get higher turnout than other
referendums. This strengthens the case for referendums held on
the same days as elections.
4 January 2010
bec Referendum Act 1978.) The 1998 Amendment
states "The total of contributions to each national committee
by the same elector in the same referendum shall not exceed the
amount of $3,000" (Section 91).
bec Ministry of State for Electoral and Parliamentary
Reform Consulting the People of Qu
bec, (1977), p. 7
17 On this issue, see my book M. Qvortrup (2005 second
Edition) A Comparative Study of Referendums. Manchester
University Press, chapter 2. Back
The 1983 Constitution of St Kitts and Nevis states: 38.-(2)
b) [a constitutional amendment must be] approved on a referendum
by not less than two-thirds of all the votes validity cast on
that referendum in the island of Saint Christopher and two-thirds
of all the votes validly cast on that referendum in the island
of Nevis. Back
See M. Qvortrup (1999) A.V. Dicey: "The Referendum as the
People's Veto", in History of Political Thought, Vol.20,
No.3, pp. 531-546. Back
El Pais 5 January 2005, "Periodistas, futbolistas
y actors abren el viernes la campa?a del referendum europeo" Back
McKenna v An Taoiseach, an Tanaiste and ors. 1995 Back
M.H. Qvortrup, "How to Lose a Referendum", The
Political Quarterly Vol. 72, No. 1, 2001 Back
Elizabeth Gerber, an American political scientist, has found that
campaign spending in support of a proposition was ineffectual.
However, negative campaign spending, ie spending against a proposition
was often effective. See E. Gerber, The Populist Paradox. Group
Influence and the Promise of Direct Legislation, Princeton, Princeton
University Press, 1999. Back
In a 1998 amendment, contributions were limited to $3,000 per
donor to each campaign. (1978 Qu Back
See also: The Local Authorities (Conduct of Referendums) (Wales)
Regulations 2004. Back