Memorandum by Nigel Smith
UK democracy would benefit from extending its
use of referendums.
Referendums must first be removed from their
existing plebiscitary context and placed on a new constitutional
footing independent of government.
Referendums on constitutional matters should
The Lords should be given a qualified right
to call a referendum.
PPERA is unsatisfactory and needs to be revised
The Electoral Commission should be continued
but its role clarified.
Multi-option referendums on major issues should
Thresholds in referendums should be avoided
as far as possible and when used be open and minimal.
Major referendums should be stand alone political
events held separate from General Elections.
The minimum length of the referendum period
should be increased to protect and improve the deliberative process
prior to the vote.
The introduction of Citizens Initiative should
be encouraged and anticipated.
What are the strengths & weaknesses of the
referendum as a democratic tool?
1. Absolutists argue that ceding any decisions
to incompetent voters undercuts representative democracy leading
to "wrong" decisions, that referendums are conservative
devices incapable of dealing with reform and worse they can be
used to oppress minorities. Much of their evidence lies in a plebiscitary
2. Having studied referendums in modern
democracies, I believe the criticisms overstated. If absolutists
were prepared to cede a little, they would find our democracy
would gain a lot just at the time it needs to be revitalised.
3. Referendums cost money and take time,
are not so good with new, unfamiliar issues or with multiple options
for reform, are cautious rather conservative when considering
change. Without fair and good procedure especially in initiative
referendums, they can soon demoralise voters and distort political
4. On the other hand, they tiebreak major
issues that have split politicians and parties, make decisions
that voters are committed to, induce consensus and embrace reform.
They educate and involve the voter in both the issues and the
democratic process. They can introduce new issues or highlight
ones that politicians would like to ignore.
5. Most of the procedural problems that
critics highlight can be avoided by good design that sets out
to give a proper role to referendums rather than with a wilful
intent to cripple them. The UK is in the position to choose best
practice from around the world.
6. Some argue that constitutional issues
are too complicated for the voter yet they remain a frequent source
of referendums usually with positive effect.
What assessment would you make of the UK's experience
7. The UK has used referendums for a long
timemy local authority decided by referendum in 1878, more
than 130 years ago, to municipalise the gas supplybut
much of this experience of minor referendums is lost. Even bigger
events like the 1920 Scottish referendum rejecting prohibition
are forgotten and we are left largely with the post war record
from 1973 the Northern Ireland Border referendum onwards.
8. I would separate the 70s referendums
from the 90s. Some features of these deserve recalling. The way
the Government arranged the 1975 EU public debate (a plan
now declassified) would probably not be acceptable to the Electoral
Commission, the use of thresholds to hobble the first devolution
referendums, the option of the Orkney & Shetland veto, the
very use of a referendum and subsequent abstention of the catholic
vote in 1973. It is arguable that the 70s referendums although
providing valid results didn't entirely settle matters.
9. There have been big changes in society
since the 1970s. Voters and the media are less deferential and
both are much less inclined to take for granted the advice of
politicians. Better educated voters served by plural sources of
information, the replacement of class politics by managerial politics
and the fragmenting of the big party duopoly created the more
fluid political society desirable for referendums.
10. The devolution referendum of the 90s
apart from making a historic decision cutting through years of
political impasse also sustained public support for the Scottish
Parliament through the first difficult years to a degree that
would not have been possible without a referendum. In Northern
Ireland, the result showed a large body of Unionists prepared
to share power certainly enough to protect reforming politicians
and sustain support for the long end stage. And in Wales, it showed
how far public opinion had moved from 1979 to 1997 making
clear that the narrow result was part of a movement of opinion.
11. Yet even the major referendums of the
90s remained very much a tool of governmentcloser to a
plebiscite than a referendum. Governments used them to take controversial
issues out of a General Election or consider putting one on PR
into an election in order to appear progressive. Governments decide
the issues for a referendum then change their mind. They choose
the timing and even the length of the referendum debate then give
themselves a privileged position in it.
12. In the absence of a culture of direct
democracy, the referendum is conducted as much as possible on
a party basis suppressing dissenters in their own party where
they can and hoping that giving a party lead will be decisive
with their voters. Even political commentators became lulled by
the Westminster prism into seeing it as a tool of government.
Journalists were surprised to learn that in the honeymoon after
1997 the majority of Labour voters in Wales ignored Blair's
appeal and stayed at home rather than vote for the Assembly.
13. Although the UK experience may be described
as mixed with more recent experience the more encouraging, it
is clear that referendums are here to stay. The first reform must
be to extricate the referendum from this plebiscitary context
and to give it a separate role in our democracy, independent of
government where all referendums would use fair and good procedure
and some become obligatory.
How does the referendum relate to the UK's system
of Parliamentary democracy?
14. The UK is a representative democracy
and should remain so. Putting a few major issues and rather more
minor ones to referendum will hardly undermine the principle of
representative democracy. There would have to be a wholesale adoption
of Citizens' Initiatives in a quite radical way to bring the degree
of change some fear.
15. The more immediate danger for our democracy
is that in 50 years the standing of Parliament has fallen
from its post-war high to its present low to a degree that simply
can't be explained by a loss of deference or the problems of the
past year. Restoring trust needs radical reform on several fronts.
Greater use of referendums should be one part of this wider reform
but it is not a panacea on its own.
16. It is worth noting the loss of trust
in politicians was a material factor in the referendum on the
NE Assembly and the Edinburgh and Manchester transport referendums.
Should "constitutional issues" be subject
to a referendum? If so how should it be defined?
Rather than raising all the referendum options
piecemeal, I list them together here as a scheme.
17. Constitutional issues should be subject
to obligatory ratification referendums.
All the recent and most of the proposed major
referendums are prima facie constitutional in nature involving
either a change in governance, method of election or the ceding
of powers not easily retracted.
The obvious difficulty is the lack of a written
constitution. The Scottish Parliament must certify that a bill
is within its devolved powers. The Speaker in the Commons could
certify that a bill or treaty does not contain constitutional
issues as defined in a prior set of tests. The creation of the
tests is itself a political act but it would separate the principle
from the issue and ought to reduce the area of future controversy.
18. Governments and Local authorities retain
their existing right to hold optional referendums.
19. The Lords should be given the power
to call an optional referendum on a contentious bill.
This would rarely lead to a referendum because
its value lies as a check on government leading to some referendum
proofing by the government of the day. It would certainly be a
very British use of direct democracy but not without variants
20. Optional veto referendum on new legislation
invoked by valid Citizens' petition.
This gives rise to perhaps one referendum a
year in Switzerland. In more than half the instances, the voters
support the Government. I include it for the sake of completeness
but a reformed House of Lords might well anticipate at least some
of the bills that would otherwise provoke its use.
21. Citizens Initiative can propose new
law which may or may not lead to a referendum.
There must be a process to produce both a legally
viable initiative and sufficient democratic backing to validate
Is PPERA 2000 an effective piece of legislation?
How if at all could it be improved
22. The short answer is that for referendumsit
is not. It is both unfair and unenforceable in places
23. It is unfair that all participants except
the Government must obey the Act for the whole of the referendum
period (a maximum of six months) while the Government need only
comply for the last 28 days. According it this privileged
position which betrays once again the plebiscitary origins of
referendums in the UK and is certainly inappropriate. The Government
should be put at least on the same footing as everyone else or
better still removed entirely from the campaign.
24. The Act was the first attempt to control
spending in a UK referendum. Leaving aside the important principle
involved, the controls would have proved unworkable and become
a serious distraction from the referendum debate given journalists
obsession with process.
25. The main loophole was the £10,000 limit
that could be spent by each of an unlimited number of people provided
they acted as individuals and not in concert. This class of "donor",
a little analogous to 527 campaign groups in the US, would
have been beyond the reach and influence of the designated campaigns.
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.
26. Although our campaign had every intention
of abiding by the financial requirements of the Act (we had to
convince the Commission we had the means to do this before being
designated) there was a substantial risk that despite our best
efforts at compliance we would have failed. As MPs have had difficulties
enough with returns from permanently established constituency
offices, we should not have been surprised if the temporary nature
of cross party campaigns, their instant dissolution on referendum
day and the scale of a UK wide referendum meant that our "Responsible
person" required by the Act would have been left unable to
satisfy the Commission on all counts. The Commission would have
been faced with prosecuting a non-existent campaign or invalidating
27. The maximum referendum period is six
months but the minimum could be as short as eight weeks amounting
to a snap referendum and given that some of that time is taken
up with designation process and early voting, the referendum debate
could be very short. It should be increased to at least 12 weeks
minimum for major referendums to protect the deliberative process.
Is the role of the EC in regard to referendums
as set out in PPERA appropriate?
28. If state aid is not to be given automatically
to every campaign group then some selection has to be made and
an independent body such as the Commission would be required to
do it. I don't think the option of no state aid is practical.
29. In the two years that I dealt with the
Commission, I came to respect its intellectual approach to the
wording of the question, the consultation on combining referendums
and general elections and the way it tackled voter information
all of which seemed appropriate.
30. However I had many doubts about its
ability to handle the more practical issues of designating organisations
and managing the permitted participants in the actual campaign.
As there was to be no pre-qualification process (something that
might be possible in obligatory referendums) I thought that the
Commission would introduce a protracted bureaucratic diversion
at just the moment both sides should be concentrating on the referendum
debate. My worst fears were confirmed in the NE referendum, a
fraction of the size of a UK referendum. Much of the complication
and potential delay arises from the financial controls required
by the Act.
Whether or not there should be any threshold requirements?
31. Over much of the referendum world such
thresholds have been incorporated in the referendum process either
in a covert way or at unreasonable levels with the (usually) wilful
intent of crippling the referendum process. With the result that
in many countries, neither the GLA nor the Welsh Assembly would
32. Democracy seems to get along pretty
well on a simple majority. So the supermajority of 60% of votes
cast required to validate the "Yes" vote in British
Columbian PR referendum seems unreasonably high if at least open
33. A common threshold is that 50% of the
registered electorate must vote yes for the result to be valid.
The arithmetic of this beguilingly democratic requirement is,
given a 60% turnout, yes must win 83% of the votes cast. Just
this threshold has neutered Italian referendums and the variant
used in Scotland in 1979 produced a strong adverse reaction
to referendums afterwards.
34. Using registered voters instead of votes
cast makes non voters into no voters and thus encourages abstention
campaigns. A democracy requires precisely the opposite effect.
35. Thresholds can also be uneven in effect.
Threshold seen as reasonable for a major issue can prove impossible
for a more specialist issue like "Dentures for old people."
36. If used at all, turnout quorums should
be set at levels to avoid ridicule and not as additional democratic
hurdles. Above all the thresholds must be obvious to all voters.
The wording of the referendum question including
37. The question should not be leading nor
combine decisions in a single question.
38. A single referendum is not an
ideal device for a major multi-option issue. Yet often more than
one reform of the status quo is possible. The central problem
is not the ballot paper design but that nobody has yet found a
way of conducting a multi-option referendum debate that enlightens
the voter and doesn't make broadcasting balance impossible to
39. One reason the Scottish Referendum gave
such an unequivocal result was the independence option was not
only not on the ballot paper (obviously) but also largely removed
from the debate by the consent of the SNP. Then as now, pitching
Sovereign independence against Devolution is more likely to confuse
than enlighten. A referendum on independence should be just that.
40. The Scottish Devolution referendum was
a simple multi-option referendum, a feature largely ignored by
the voters. But if held under PPERA, the Commission would have
had to fund all possible outcomes on the ballot paper, includinga
Parliament without a tax powercomplicating the debate as
every broadcaster would have had to follow suit.
41. In some multi-option referendums, authorities
have tried to manipulate the result by deliberately excluding
popular options leading to write-in campaigns.
42. Sweden held a multi-option referendum
on nuclear power generation involving one principle and variations
of degree. While the narrower focus helped, the interpretation
of the result remains controversial.
43. The most satisfactory way of holding
a major multi-option referendum is to hold a pair of referendums
as New Zealand did on PR. In the first referendum the alternative
PR systems were ranked by voters. The winning PR system then went
head to head with the status quo (FPTP) 14 months later.
Should there be formal constitutional triggers
for a referendum?
44. There is already such a trigger in the
Belfast agreement which requires a referendum should NI wish to
join the Irish Republic.
45. Less certainly, powers devolved to the
Scottish Parliament were powers retained by Westminster. But it
is hard to see that what came by referendum won't have to go by
Whether a referendum should be indicative or binding?
46. A binding referendum is much to be preferred.
Voters know they are making a decision they will have to live
with and the decision attracts the media earlier and more intensely
thus invigorating the referendum debate, educating the voters
and increasing turnout.
Whether a referendum should ask broad questions
or refer to specific legislation?
47. A broad principle is generally not sufficient.
The voters are perfectly capable of extracting a broad principle
of what is at stake in specific legislation.
48. For example, I supported the broad principle
of a regional assembly for the NE until I saw the legislative
detail and then predicted its rejection. Sadly the result has
been widely interpreted as the wholesale rejection of a broad
principle rather than the sensible rejection of a weak proposal.
49. A broad principle may be sufficient
dealing with "liberty" like the Independence of East
Timor but as Scottish independence would be more about good governance
than liberty the referendum ought to refer to a specific proposal
post negotiation with the UK.
50. Mandate referendums may only have a
broad question to deal with. De Klerk in SA sought a mandate to
continue negotiating. The Conservatives have talked about getting
a mandate to negotiate with the EU. The SNP could seek a mandate
to negotiate independence by referendum rather than General Election
raising the possibility of two referendums on independence.
51. Defensive referendums again using a
broad principle have been suggested recently to counter Independence.
It seems unwise as a general practice to call a referendum as
soon as a "threat" appears on the horizon. The risk
is that there is differential voting, one side seeing an opportunity,
the other not sufficiently aroused by a distant and apparently
premature issue. The outcome becomes a mandate to negotiate.
52. The only way round it is to hold the
referendum at the same time as a General Election banking on the
trend that the status quo vote increases as it often does. But
this would breach UK good practice and lay the referendum open
to charges of rigging. When the Swiss voted to join the UN it
was a completely stand alone referendum with a turnout of 81%
vindicating the policy of selective participation.
Whether a referendum should precede or follow
53. There should be a firm proposal. Obviously
an un-ratified Act is one way of achieving this but not the only
way. A treaty, the existence of the euro and the Scottish Convention
in their various ways crystallised the issue.
54. The Scotland Act might well have been
improved if the referendum had followed enactment because the
Government used the referendum result to ram it through Parliament
paying little heed to the suggestions of friend or foe. So if
the issue has emerged from Parliament, I would prefer ratification
Campaigning organisations and the funding of campaigns
55. The Electoral Commission may designate
one organisation on either side as lead campaigns.
56. Because of the way the UK currently
holds referendums, these campaigns are usually hastily formed
working against the clock drawing activists, endorsements and
donations wherever they can. Beside campaigning skills, they must
now build compliance structures. Because of the indecision over
the euro referendum, the euro campaign had the luxury of time
to prepare. Nevertheless from the opening of the referendum period
there would have been a great scramble to be selected as the designated
organisation with a still half formed organisation. It is a selection
process that could make enemies of allies usually on one side
only and thus a considerable responsibility for the Electoral
57. Apart from immediately being elevated
to lead campaign in the eyes of the media and public, the state
aid for each designated organisation is a free mailing of a referendum
address, UK funding of £600,000, free use of premises and
58. Though PPERA didn't exist in 1997 it
is worth considering how it would have worked in the Scottish
59. The UK funding pro-rated for Scotland
would be £55,000 that is about 9% of what the Scottish
Yes campaign actually spent and would have paid for the polling
research. Free premises represent a further modest financial contribution.
60. There were no referendum broadcasts
because of court rulings in prior referendums. So this provision
is an important new contribution to the referendum debate though
the format could be improved.
61. The most valuable aid is the free mailing
to the electorate. This was far beyond the financial resources
of either side in Scotland. At first the new Blair government
tried hard to keep out of the referendum process anxious to be
seen as "whiter than white" after its criticism of the
Major government. Eventually convinced that the electorate had
to be given some information but to avoid being seen as partisan,
a rather milk-and-water leaflet was distributed by the Scottish
62. Drawing on experience elsewhere, the
format of the referendum address could be developed into a statement
and rebuttal from both sides contributing more to the referendum
63. There is never enough money in campaigns.
The state aid in the Act might be raised for obligatory referendums
but otherwise it is probably about right. My concerns are more
about the regulatory process and compliance getting in the way
of the deliberative debate.
Public information and media coverage
64. Though hardly ever an Athenian ideal,
Switzerland gets close, the referendum debate is one of the defining
features of a referendum. It is greatly helped by the UK tradition
of 50:50 broadcasting balance in referendum coverage, something
the UK shares with few other countries, notably Switzerland and
65. But if this referendum debate is itself
preceded by some kind of event which both crystallises the issue
and educates many especially the media, politicians and opinion
formers then the subsequent referendum debate will be enhanced.
In Scotland obviously the Constitutional Convention, in Northern
Ireland the long negotiation of the Belfast Agreement, on the
euro its very existence alongside the "five tests",
even on a small scale the Harris super quarry and its public inquiry,
all these served to prepare the arguments, brief the media and
66. The council tax referendums in the South
of England and the movement opinion in the Harris super quarry
referendums showed that public information works. But greater
thought could be given to how this can be improved especially
in those parts of the country not well served by regional newspapers
and the broadcasters.
Party political activity
67. Politicians should take part in referendums
as individuals but the role of the Party should be restricted
to endorsing an issue.
Whether they should coincide with other elections
68. Major referendums should not coincide
with a General Election, minor referendums may or may not. No
major UK referendum has yet coincided with a General Election.
While this tradition has arisen more from low politics than high
principle, the Electoral Commission have since given their independent
view that this is a sound practice worth continuing.
69. Towards the end of 2002, there was talk
of the euro referendum being held at the same time as the second
Scottish General election. As a devolutionist, I had seen the
way the Kosovo crisis had overshadowed the first SGE and knew
the euro referendum would dominate the second. So I put the international
experience to the Electoral Commission who in turn launched a
consultation. The Commission subsequently recommended against
holding a major referendum at the same time as a General Election.
70. The arguments briefly are General Elections
are party events, referendums are not. Broadcasters find it difficult
enough to maintain the 50:50 referendum balance without the
simultaneous complication of reflecting party strength in a general
election. So the referendum debate is damaged even obliterated.
How does the referendum relate to other tools
such as citizens initiatives?
71. All referendums discussed so far represent
responses to the legislative agenda. Citizens' Initiatives would
for the first time in the UK allow voters to impose their agenda
directly on the Legislatures raising issues ignored by politicians.
72. The US Federal Government for long opposed
clean energy policy. At the same time citizen initiatives encouraged
several States to introduce laws promoting the use of clean energy
so change came from the bottom up. The recent initiative in Switzerland
banning minarets articulated a problem being swept under the carpet.
Not all successful initiatives end in a referendum because governments
may simply adopt the initiative into their own agenda or make
a counter proposal.
73. There is also a provision for an EU
Citizens Initiative in the Lisbon treaty. However it is closer
to transnational petition for a policy. The more likely development
seems to be the Conservatives who will nominate policy areas within
which initiatives can be used to set the agenda (on whom is unclear).
If successful, one can see them self seeding into other policy
areas but it is just this kind of unplanned growth which gives
rise to later procedural difficulties.
74. The Committee is right to anticipate
this and to set the innovation and procedure in proper constitutional
How would you assess the experience of other countries
in relation to the use of referendums?
75. Many countries use referendums, the
majority on an occasional basis. There are quite a number of countries
with a referendum process in their constitution, rather fewer
with an initiative process but still plenty of experience good
76. The ones the UK should look at areSwitzerland
is in a class of its own but has many good practices especially
the deliberative culture. California will this year hold a constitutional
convention to reform it's over active initiative process. Despite
the current difficulties, it is very striking how attached Californians
are to Initiatives. US states have certainly something to teach
us. Germany has greatly expanded its use of citizen initiatives
in the last 10 years and Ireland has used referendums from
the foundation of the State.
9 January 2010
34 I chaired the cross party campaign for a Yes vote
in the Scottish Devolution referendum in 1997, advised the Yes
campaign in the Northern Ireland referendum in 1998 and chaired
the UK Euro No campaign from 2002 to 2004. In the latter
role, I worked with the Electoral Commission for two years interpreting
PPERA in preparation for the Euro referendum and then beyond its
abandonment in June 2003 to the conduct of the NE Regional
Assembly referendum in November 2004. Back