26th February 2013
Referendums are increasingly becoming part of British civic life. Whilst this constitutional instrument remained unused in Britain until forty years ago, eleven referendums have taken place in the United Kingdom since 1973 – with only two held nationwide. In the past fifteen years a substantial number of constitutional issues have been subjected to popular approval.
According to Professor Vernon Bogdanor, the recent experience of referendums in the UK suggests the emergence of a new constitutional convention. Before significant powers could be devolved away from Westminster, a referendum would be required. In Professor Bogdanor’s opinion, the precedents set by the Scottish devolution referendums (1979 and 1997), the Welsh devolution referendums (1979, 1997 and 2011), the Greater London Authority referendum (1998), the Northern Ireland Belfast Agreement referendum (1998) and the North East England devolution referendum (2004) have developed a convention that may in turn constrain governments. Under this doctrine, the Westminster government would have an obligation to hold a referendum in the case of a delegation of power to devolved institutions and would be bound by its result.
Professor Bogdanor also argues that a referendum would be required when other major constitutional reforms are considered by Parliament. The most obvious examples would be the referendum on the Alternative Vote electoral system in 2011 and the future referendum on EU membership proposed by the Prime Minister, David Cameron. With these referendums – so the argument goes – political actors have created a precedent. They have generated a public expectation that certain pivotal issues of constitutional relevance remain the preserve of popular sovereignty. For this reason, it may even be possible to pose the question of whether the People could be regarded as the third chamber of Parliament. Therefore, even though an elastic and uncodified constitution (such as that of the UK) would in principle imply an elastic role for referendums, the referendum has developed into a doctrine that might even constrain Parliament.
The difficulty with this doctrine is that other recent major constitutional changes – such as the introduction of the Human Rights Act 1998 and the Constitutional Reform Act 2005 (which created the new Supreme Court) – have not been sanctioned by a referendum; nor was a referendum proposed before introducing elections to the House of Lords.
This suggests the doctrine is not yet particularly firm, even in relation to devolution. For example, a referendum was required before the Welsh Assembly could be granted primary legislative powers, but not for the grant of greater fiscal powers to the Scottish Parliament under the Scotland Act 2012. If next year’s Scottish independence referendum fails, and there are then proposals for Devo-Max, will a further referendum be required? Or will it depend on the actual result of the independence referendum? This uncertainty does not suggest the presence of a precise doctrine and appears to reinforce the argument that the use of referendums in the UK – in the absence of a codified constitution – is largely based on political considerations.
The Constitution Unit Blog 
The key point that I takeaway from this is that the value of a referendum as a tool of direct democracy is associated with its use in deciding fundamental matters of constitutional importance. If so, we are soon to be faced with voter fatigue and a disillusioned public as the greatest use of referendums will be for non-constitutional and largely administrative matters between the UK and the EU as per the EUA 2011. The likely outcome following repeated referendums on technical points few understand or care enough to vote on, is calls for inquiry into what referendums are costing the tax payer.
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Referenda are only used to legitimise established Government policy.
If it goes against the Govt’s policy it is ignored, as the North East referndum was ignored. If a Govt fears the answer, they won’t hold one, as in a referendum for an English Parliament.
Interesting speech. If generally accepted, it almost certainly means that there would be no further devolution to Scotland in the event of a no vote in the 2014 referendum. I can’t see a majority in the UK being sufficiently interested to actually turn out, or warm to the prospect of increased power for Scotland. The outcome is almost predestined – the UK would deny Scotland further devolution – even if a majority within Scotland desired it. Which would create further constitutional instability in Scotland.
So, if this notion about referendums as an emerging precedent is to run, it has immediate political consequences for the 2014 referendum. The YES campaign will be able to say that the hints that the opposition campaign are presently dropping about some further (albeit unspecified) measures of devolution are to all intents and purposes unrealisable.
There is also the European Union Act 2011 which defines when a referendum could be considered but this is dependent on the Minister making the case to the House of Commons. Referenda also in countries with codified constitutions can also be tactical or political to keep parties together. In Austria there was recently much discussion on an automatic referendum if enough signatures were collected but many feel this bypasses parliament. The role of the executive in deciding on the timing of a referendum and the role of parliament are important questions to be considered. In all more direct democracy is to be welcomed but probably needs more systematic thought and comparative studies.