Memorandum by Navraj Singh Ghaleigh, Edinburgh
The UK's limited experience of running national
referendums is quite at odds with its detailed regulation of them.
When combined with the expertise accrued from the eight sub-national
referendums held since 1973, there is a body of constitutional
law and practice that amounts to a regulatory regime of some sophistication.
Whether over-engineered or gold plated or merely appropriate,
many of our mechanisms for the holding of referendums stand well
in comparison with those in jurisdictions that deploy devices
of direct democracy more frequently. This is not to say that it
is unimprovable. Technical issues such as power sharing and agenda
setting, the facilitation of popular involvement and the use of
ICTs remain problematic, though far from insoluble. The greater
challengeand one which this inquiry can positively contribute
tois that of the broader malaise of democratic participation.
Trends of voter turnout, voter volatility, partisan attachment
and cognate measures all point towards a citizenry that is increasingly
detached from democratic politics, paired by political elites
engaged in a similar process.
An appropriately structured system of direct democracy will not
reverse this long-term (and transnational) phenomenon, but it
can at the very least address the process of mutual withdrawal,
popular and elite, and in its discrete realm of operation create
incentives for engagement.
The use of the referendum device in the UK is
distinct from most comparable polities in quantitative and qualitative
terms, with the two being closely linked. The relative paucity
of use can be explained using a definition of constitutional referendums
as those which implicate the sovereign relations between the people
In this light the referendums relating to Northern Ireland (1973 and
1998), Scottish and Welsh devolution (1979 and 1997) and
assemblies in London and the North East region (1998 and
2004), together with that of 1975, can be seen as constitutional
referendums, distinct from those relating to matter of social
policy. In Canada for example, of the 74 referendums held,
the majority have related to the regulation of alcohol (40), with
other quintessentially "social policy" issues such as
gaming (2), schooling (2) and day light savings (4) also weighing
in. Only recently have constitutional questions been the subject
matter of referendums, including Quebec (1980 and 1995),
electoral system (BC and PEI in 2005) and Constitutional patriation
(1982). An even more extreme skewing towards "ordinary"
referendums is found in the case of the states of the USA, which
have conducted approximately 2,300 initiatives since 1900.
Of European comparators, both Denmark and Ireland have deployed
the constitutional national referendum more frequently than the
UK15 and 21 times respectively. (Such countings
are inevitably contentiousis abortion a constitutional
matter for these purposes? Arguably not in that it does not pertain
to fundamental territorial definitions of the state or the ceding
of sovereignty to international organisations, though it certainly
does in the case of Ireland go to citizens' authorship of the
Viewed in this way, the UK's modest use of the
referendum is less to do with inherent incompatibility with the
Westminster system and/or parliamentary sovereignty than a historically
laggardly approach to constitutional renewal. Certainly in the
future, it is difficult to imagine major changes to constitutional
arrangements such as devolution, voting system or European integration
without powerful demands for a referendum.
In terms of policy lessons from those referendums
that have been held in the UK, the following suggest themselves:
1. Public Funding
Present in 1975, absent in the referendums of
1979 and 1997 and reappearing under the scheme in PPERA
(and as such deployed in the NE referendum 2004), public funding
of referendum campaigns is decisive. The Referendum Act 1975 provided
for equal funding to the "Yes" and "No" campaigns
in the EEC referendum which in the case of the former accounted
for 12.5% of its income and 94% of the latter's. Put another way,
but for public subvention, the "No" campaign in 1975 would
have been unable to organise, mobilise, communicate or campaign.
In the event it lost67.2% against 32.8%. The argument that
a campaign that is unable to engage the political donating classes
should not be availed of the crutch of public funding ignores
the endogeneities at play. These were laid bare in the case of
the Welsh referendum of 1997 where there was no provision
for public funding. The "No" campaign emerged only at
the eleventh hour of the campaign, consisting of a disgruntled
Labour Party member and a single donor. Nonetheless, it ran the
forces of the Welsh political establishment, which were arrayed
against it (the seat-less Welsh Conservatives chose not to campaign)
mighty close, losing by a short nose50.3% to 49.7%. The
Committee on Standards in Public Life noted in its report on party
funding that "a fairer campaign might well have resulted
in a different outcome." The North East referendum of 2004 demonstrates
the pivotal role of "raising all boats" that PPERA's
scheme provides for in giving equal public support for each campaign
(or "Designated Organisation" in the language of the
Act). Each of "North East Says No" and "Yes4theNorthEast"
received public funding of £100,000, administered by the
Electoral Commission. As a percentage of expenditure by answer,
public funding represented a mere 18% of the "Yes" total
but 49% for "No", which campaign defeated the proposition
comprehensively77.9% to 22.1%.
Public funding of this sort is unusual in comparative
perspective, even in polities with regular recourse to direct
Occasionally it is mistaken with government neutralityan
entirely different matter. What core funding provides is a vital
means for organised opinion to argue its case against what may
often be a near consensus among political elites. In its absence,
those lacking traditional channels of support would be starved
of funding and unable to mount a meaningful challenge.
2. Power SharingCitizens' Initiatives
The calling of a referendum in the UK is, as
a matter of substance, not in the gift of Parliament, or even
the government so much as the Prime Minister. As such, and like
so much in the UK's system of government, it depends on the office
holder's position of strength within the party, cabinet and so
on. A "weaker" PM may have to seek consensus with colleaguesthe
non-referendum on the Euro between 1997-2001 has some of
this. A consequences is that Prime Ministers are reluctant to
call for referendums unless they are assured of victorya
loss being too closely associated with their own, or their party's,
Citizens' initiatives (CI) provide a mechanism
by which power can be shared with the citizenry, kicking against
a too tightly controlled agenda setting capacity. The details
of its implementation are crucial and ensuring "fit"
with the UK's broader constitutional arrangements is key (which
makes "abrogative" referendums problematic). As such,
the configuration of the (i) relevant number of signatures, (ii)
timeframe within such signatures must be accumulated, and (iii)
any territorial requirement assumes great importance.
If direct democracy in the UK is to remain the preserve of "constitutional"
matters, the threshold for CIs can justifiably be moderately high.
A trigger threshold of 400,000 signatures (approx. 1% of
the registered electorate), collected in an eight week period,
with at least 1000 signatures in each of one quarter of all
Westminster constituencies may satisfy that requirement. Such
a scheme would ensure that a successful CI would need to generate
nationwide activism in order to trigger a poll. Evidently, an
attendant funding regime would be necessary.
3. PPERA's Effectiveness
PPERA's regulation of referendums draws heavily
on the broader scheme of electoral and party funding. Notwithstanding
the unfortunate amendments wrought by the Political Parties
and Elections Act 2009 in terms of partisan Commissioners
(s.5) and substantial increases in donation and reporting thresholds
(s.20), this remains a broadly successful scheme. The experience
of the NE referendumthe only such poll held pursuant to
the PPERA regimepleasingly demonstrates that the preponderance
of income, expenditure and political elites do not determine outcome.
If future referendum campaigns are to satisfy
the demands of deliberative democracy they must engage with technological
developments and in particular what is known as "web 2.0".
This is an approach to online communication that is familiar though
tools such as YouTube, Wikipedia and social media platforms. As
opposed to conventional forms of authorship, web 2.0 is authored
by an infinite number of contributions, users may post
anything at anytime (as opposed to strict editorial limits), external
contributions are encouraged and the channels of communication
are dynamic and various. Web 2.0 has been most famously deployed
in the political context with the US Presidential Election of
2008. In the context of direct democracy, the 2008 Californian
ballot measure on same sex marriages raised an important issuenamely,
is the reporting requirement for address information of donors
to be published "protected speech". The below image
(from http://www.eightmaps.com/ not printed) illustrates how donors'
address data can be deployed when "mashed up" with online
Such innovations would be impossible in the
UK owing to s.69(4) PPERA which exempts individual donors' address
information from disclosure. This is an odd exemption in the absence
of any evidence or even risk assessment of threats, harassment
or reprisals. Nor is there any evidence of such disclosure having
a chilling effect on donations. Combined with PPERA's staggeringly
high disclosure thresholds, the regime gives scant regard to the
electorate's legitimate entitlement to have adequate information
as to where campaign money comes from and how it is spent. This
provides crucial information in evaluating who back or oppose
referendum propositions, a key heuristic shortcut for citizens.
In an online world, this is even more true.
Updating of the UK's approach to direct democracy
requires a more modest approach to constitutional reform than
might be imagined. Much of the constitutional apparatus is already
in place, operates well (to the extent that it has been tested)
and is consistent with comparative best practice. Reforms which
have no pedigree elsewhere, such as multi-option referendums,
should be treated with caution. In terms of power sharinga
failing apparent across various constitutional settingsthere
is a clear need for reform. Similarly, any recommended reform
will need to harness the energies and opportunities yielded by
4 January 2010
27 This submission draws on my previously published
work, most pertinently, "Sledgehammers and nuts? Regulating
referendums in the UK" in S. Hug & K Gilland Lutz (eds),
Financing Referendum Campaigns (Palgrave Macmillan, 2009).
Enclosed at Appendix 1. Back
P Mair, Ruling the Void: the Hollowing of Western Democracy,
42 New Left Review (2006) pp 25. Back
S Tierney, Constitutional Referendums: A Theoretical Enquiry
 Modern Law Review 360. Back
See more generally, S. Hug & K Gilland Lutz (eds), Financing
Referendum Campaigns (Palgrave Macmillan, 2009). Back
The range of qualification rules in the US states is to be found
in CJ Tolbert et al, "Election Laws and Rules for Using Initiatives"
in S Bowler, T Donovan & CJ Tolbert (eds), Citizens As
Legislators: Direct Democracy in the United States (Ohio State
University Press, 1998), Table 2.1. Back
For an unsuccessful challenge to California disclosure rules in
this context see, ProtectMarriage.com v. Bowen (2009),
Case No. 2:09-CV-00058-MCE-DAD, U.S. District Court for the Eastern
District of California, Sacramento Division. Back
See my presentation, "Donors, data and speech: Mashup!"
at http://tinyurl.com/18r Back