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Referendums in the United Kingdom

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Referendums in the United Kingdom HOUSE OF LORDS Select Committee on the Constitution 12th Report of Session 2009–10 Referendums in the United Kingdom Report with Evidence HL Paper 99 Select Committee on the Constitution The Constitution Committee is appointed by the House of Lords in each session with the following terms of reference: To examine the constitutional implications of all public bills coming before the House; and to keep under review the operation of the constitution. Current Membership Lord Goodlad (Chairman) Lord Hart of Chilton Lord Irvine of Lairg Baroness Jay of Paddington Lord Lyell of Markyate Lord Norton of Louth Lord Pannick Baroness Quin Lord Rodgers of Quarry Bank Lord Shaw of Northstead Lord Wallace of Tankerness Lord Woolf Declaration of Interests A full list of Members’ interests can be found in the Register of Lords’ Interests: http://www.publications.parliament.uk/pa/ld/ldreg/reg01.htm Professor Adam Tomkins, Legal Adviser, is a Member of and unpaid Ad Hoc Legal Adviser to Republic. Publications The reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee are available on the internet at: http://www.parliament.uk/hlconstitution Parliament Live Live coverage of debates and public sessions of the Committee’s meetings are available at www.parliamentlive.tv General Information General Information about the House of Lords and its Committees, including guidance to witnesses, details of current inquiries and forthcoming meetings is on the internet at: http://www.parliament.uk/parliamentary_committees/parliamentary_committees26.cfm Contact Details All correspondence should be addressed to the Clerk of the Select Committee on the Constitution, Committee Office, House of Lords, London, SW1A 0PW. The telephone number for general enquiries is 020 7219 1228/5960 The Committee’s email address is: [email protected] CONTENTS Paragraph Page Chapter 1: Introduction 1 7 Background 1 7 Box 1: UK experience of national and regional referendums since 1973 9 The current context 8 11 Our report 11 11 Chapter 2: Referendums—Arguments for and against 13 13 Claimed positive features of referendums 13 13 That referendums enhance the democratic process 14 13 That referendums can be a “weapon of entrenchment” 19 14 That referendums can “settle” an issue 21 14 That referendums can be a “protective device” 23 14 That referendums enhance citizen engagement 25 14 That referendums promote voter education 27 15 That voters are able to make reasoned judgments 29 15 That referendums are popular with voters 31 15 That referendums complement representative democracy 33 16 Claimed negative features of referendums 36 16 That referendums are a tactical device 37 16 That referendums are dominated by elite groups 42 17 That referendums can have a damaging effect on minority groups 44 17 That referendums are a conservative device 45 18 That referendums do not “settle” an issue 47 18 That referendums fail to deal with complex issues 50 18 That referendums tend not to be about the issue in question 52 19 That voters show little desire to participate in referendums 53 19 That referendums are costly 55 19 That referendums undermine representative democracy 57 20 Conclusion 59 20 Chapter 3: Referendums on constitutional issues 64 21 Part One: Should referendums be held on constitutional issues? 64 21 A matter of debate? 75 23 Referendums relating to the European Union 76 23 Further devolution 80 24 The Human Rights Act 1998 84 25 The UK’s experience: Constitutional precedents or political inconsistency? 86 25 Conclusion 92 26 Part Two: Mechanisms for triggering a constitutional referendum 95 27 A written constitution? 99 27 A statutory safeguard? 103 28 A parliamentary mechanism? 112 29 Chapter 4: Other uses of referendums 119 31 Part One: Citizens’ initiatives 120 31 Part Two: Local referendums 131 33 Chapter 5: The referendum campaign: practical issues 141 35 Box 2: Main provisions of the PPERA and the main responsibilities of the Electoral Commission 35 Timing of a referendum 143 35 Wording of the question 148 36 Information and the media 160 38 Funding and campaigning organisations 168 39 Box 3: Requirements of the PPERA relating to funding of campaign organisations and Electoral Commission’s role in designation 40 The role of the Government and political parties 176 42 Thresholds 180 42 Advisory or binding referendums? 190 44 Overall summary of regulatory framework and the role of the Electoral Commission 198 46 Chapter 6: Conclusion 204 48 Chapter 7: Summary of Recommendations 209 49 Appendix 1: Select Committee on the Constitution 52 Appendix 2: List of Witnesses 57 Appendix 3: International experience of referendums 58 Oral Evidence Professor David Butler, Emeritus Professor, University of Oxford and Professor Robert Hazell, Director, Constitution Unit, University College London Oral Evidence, 6 January 2010 1 Professor Michael Saward, Open University and Professor Graham Smith, University of Southampton Oral Evidence, 6 January 2010 9 Supplementary Evidence, Professor Michael Saward 14 Supplementary Evidence, Professor Graham Smith 15 Peter Facey, Director, Unlock Democracy and Peter Kellner, President, YouGov Written Evidence, Unlock Democracy 18 Oral Evidence, 13 January 2010 26 Professor Stuart Weir, Associate Director, Democratic Audit and Baroness Kennedy of the Shaws Written Evidence, Democratic Audit 35 Oral Evidence, 13 January 2010 39 Professor Vernon Bogdanor, University of Oxford and Professor Stephen Tierney, University of Edinburgh Written Evidence, Professor Vernon Bogdanor 45 Written Evidence, Professor Stephen Tierney 48 Oral Evidence, 20 January 2010 52 Lord Fraser of Carmyllie, former Director, Think Twice and Daran Hill, former National Co-ordinator, Yes for Wales Written Evidence, Daran Hill 59 Oral Evidence, 20 January 2010 59 Steve Richards, Chief Political Commentator, The Independent Oral Evidence, 27 January 2010 66 Professor Michael Marsh, Trinity College Dublin and Dr Helena Catt, former New Zealand Electoral Commissioner, and former Associate Professor, Auckland University Oral Evidence, 3 February 2010 73 Jenny Watson, Chairman, Electoral Commission, Andrew Scallan, Director of Electoral Administration, Electoral Commission and Kay Jenkins, Head of Performance and Head of Wales Office, Electoral Commission Written Evidence 79 Oral Evidence, 3 February 2010 82 Supplementary Evidence 90 The Rt Hon Michael Wills MP, Minister of State, Ministry of Justice Written Evidence 92 Oral Evidence, 10 February 2010 97 Written Evidence Dr Andrew Blick, Federal Trust for Education and Research 110 Peter Browning 113 The de Borda Institute and New Economics Foundation 116 Professor Michael Gallagher, Trinity College Dublin 120 Institute of Welsh Affairs (IWA) 124 Caroline Morris, Kings College London 127 Dr Eoin O’Malley, Dublin City University 129 Mrs Anne Palmer 131 Dr Matt Qvortrup 133 Dr Uwe Serdült, Centre for Research on Direct Democracy (c2d) 136 Dr Maija Setälä, University of Turku 138 Navraj Singh Ghaleigh, Edinburgh Law School 139 Dr Daniel A Smith, University of Florida 141 Nigel Smith 143 True Wales 149 Professor George Williams, University of New South Wales 150 NOTE: References in the text of the report are as follows: (Q) refers to a question in oral evidence (p) refers to a page of written evidence Referendums in the United Kingdom CHAPTER 1: INTRODUCTION Background 1. In November 2009, the Committee began an inquiry into “the role of referendums in the UK’s constitutional experience”.1 Referendums, by which citizens are given the opportunity to express a view on specific issues, have antecedents in the Middle Ages and earlier. A.V. Dicey advocated referendums for Britain in 1890.2 But in comparison with some other democracies,3 the referendum has been little used in the United Kingdom. 2. Although there was prior experience, such as the Scottish referendum on prohibition in 1920 (p 143), and local polls in Wales on the Sunday opening of pubs during the 1960s (Q 45, p 126), the modern history of referendums in the UK begins in 1973. Box 1 shows the national and regional referendums which have been held in the UK since, including the first, and so far only, UK-wide referendum, conducted in 1975, on whether “the United Kingdom should stay in the European Community (the Common Market)”. 3. The referendum was not used at national level between 1979 and 1997. The Labour Party’s 1997 election manifesto contained commitments to referendums on: the adoption of the European single currency; the adoption of a new electoral system for the House of Commons; the establishment of a devolved Scottish Parliament; the establishment of a devolved Welsh Assembly; the establishment of a Greater London Authority; and the establishment of Elected Regional Assemblies. 4. A series of referendums followed. In September 1997, a three-to-one majority voted in favour of the establishment of a Scottish Parliament, with a slightly smaller majority in favour of the Parliament possessing tax-varying powers. One week later, a small majority voted in favour of the establishment of a Welsh Assembly. In May 1998, on a low turnout, the London electorate voted in favour of the establishment of a Greater London Authority. Three weeks later, a referendum was held in Northern Ireland and in the Republic of Ireland on the Belfast Agreement (popularly known as the Good Friday Agreement), which resulted in a majority for the Agreement. The promised referendums on the electoral system and the single European currency were not conducted. 5. In October 1998, the Fifth Report of the Committee on Standards in Public Life, on The Funding of Political Parties in the United Kingdom, was published. The Report made recommendations for the regulation of elections in the 1 Witnesses used both “referendums” and “referenda” as the plural form of “referendum”. We have chosen to use the form “referendums” throughout the report, except where quoting directly from witnesses who use the term “referenda”. 2 A.V. Dicey (1890) ‘Ought the referendum to be introduced into England?’ Contemporary Review 57 (April).
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