The Independent Commission on Referendums, established by the Constitution Unit to review the role of referendums in UK democracy, is holding its second meeting today. At today’s meeting the members are focusing on whether principles can be identified for deciding when holding a referendum is appropriate. In this post the Commission’s Research Assistant, Jess Sargeant, summarises the issues for consideration.
The first UK referendum, with the exception of polls at a very local level, took place in 1973 in Northern Ireland. Since then there have been three UK-wide referendums, and ten referendums covering parts of the UK. Yet the question of what role referendums should play in the UK’s system of democracy remains unresolved. This is the question for discussion at today’s meeting of the Independent Commission on Referendums.
In this post, I explore the question of whether principles can be identified for deciding when a referendum is appropriate. I do not attempt to draw conclusions, or foretell those of the Commission, but simply put forward proposals for consideration.
How are democratic decisions best made?
To answer the question of what role referendums should play in a system of democracy, one must first consider how political decisions are best made. This depends on how one conceives of democracy. Broadly speaking there are three alternative conceptions: direct, representative, and deliberative.
According to the theory of direct democracy, decisions are most democratic when preferences are expressed directly by the people; representative institutions will distort popular will. In contrast, proponents of representative democracy argue that collective decision-making requires participants to dedicate significant time and resources to the process. It is not feasible for all citizens to do that, so decisions are best made by elected representatives. The third conception is deliberative democracy, according to which decisions should be made through processes in which everyone’s voice is heard and arguments and evidence are thoroughly considered. This conception is commonly associated with citizens’ assemblies and citizens’ juries.
Although these visions of democracy are often presented as mutually exclusive, most modern democracies incorporate elements of all three. Rather than being diametrically opposed, different forms of democracy can complement each other and be used to address disadvantages or shortcomings of other methods of decision-making. Regardless of which conception of democracy one subscribes to, it may still be possible to identify certain circumstances in which referendums might be appropriate.
When might it be appropriate to refer a question to a referendum?
When reference to the people is needed to legitimise a decision
There may be some matters on which it could be considered inappropriate for political elites to make a decision without obtaining the explicit consent of the people. One example could be decisions of national identity. The argument is that it is the people themselves who should determine who constitutes the ‘people’ and therefore, to be legitimate, decisions of national identity must be put to referendum. This principle has been applied in the UK, most recently, in the 2014 Scottish independence referendum.
Another common argument is that changes to how people are governed require popular consent to be legitimate: that decisions about the constitution of the polity should be made from outside the representative institutions of that polity. Australia and Ireland are two notable democracies that require a referendum on any bill amending the constitution. Other democracies, such as Austria and Spain, have mandatory referendums on changes to key parts of the constitution. New Zealand, which, like the UK, lacks a codified constitution, requires a referendum or a 75% majority in the House of Representatives to amend certain parts of its Electoral Act.
There may be other circumstances in which legitimacy, obtained by approval in a referendum, may be considered necessary or desirable. If a government takes a position contrary to the manifesto on which it was elected, it may need the public to ‘authorise’ this decision for it to be legitimate. A referendum may be appropriate when a decision is irreversible, as the electorate will have no opportunities to change it at subsequent elections. It may be difficult for parliament to overrule a decision that was made in a referendum other than by referral back to the people. Finally, if a decision indicates a major cultural shift, making it through a referendum – as, for example, in the case of same-sex marriage in Ireland in 2015 – may confirm that the change has indeed happened across the country.
When an issue cannot be resolved through usual party politics
When political parties are split on an issue, it may be difficult for a clear public view to be expressed in any way other than a referendum. Referendums can act as a mediation device to resolve recurring sources to intra-party conflict and preserve party unity. The 1975 and 2016 EU referendums arose as a result of divisions within the Labour and Conservative parties respectively. But, referendum campaigns can be adversarial in nature; and may have a polarising effect which will exacerbate rather than heal party divisions.
In a majoritarian democracy, parliamentary minorities (political parties or factions of larger parties) will be defeated in normal political processes. Referendums may be a tool through which minorities can pursue aims or challenge legislation passed by the majority. Some democracies have mechanisms for this purpose: for example, one third of the Danish parliament can call a referendum on a bill that is not yet law.
Some issues may be perceived as matters of conscience that should be ‘apolitical’. It can be argued that decisions on such issues should not be made through the usual mechanisms of party politics, but should be referred to the people. Although there is no precedent for moral issues being referred to referendum in the UK, referendums of this type are common in countries where religion plays a significant role in public life, such as Italy, Ireland and Portugal.
When there is a strong public desire for a referendum
There may be a case for a referendum when there is a strong public desire for one. This may be most apparent when the views of representatives are out of line with public opinion. A referendum can deliver a change that the public favour but that representatives oppose. Many democracies have mechanisms for citizens to trigger a referendum directly by gathering a certain number of signatures.
When representatives have a strong interest in the outcome
It has been argued that decisions in which representatives have a strong personal interest should not be made by the representatives themselves: representatives are normal human beings, and it is not realistic to suppose that their positions could be entirely unaffected by their interests. Examples include decisions over electoral reform, the length of electoral terms, and politicians’ remuneration. Some such matters might be referred to an independent body, but where they have major democratic repercussions, as in the case of major electoral reforms, there may be a case for putting them to referendum.
When might it be inappropriate to refer a question to a referendum?
As well as considering issues on which referendums may be appropriate, it is important to consider on what issues a referendum is inappropriate. Referendums are a majoritarian device, so it is often considered inappropriate to put issues of civil rights, particularly those of political minorities, to a popular vote. Referendums may also be inappropriate for making decisions on issues which require trade-offs, or have wider policy implications. Referendums on finance, budgetary, or tax laws are prohibited in Denmark, Italy, the Netherlands and Portugal.
Even if a subject matter is deemed appropriate for a referendum, there may be additional requirements to be applied. For example, that the topic is appropriate for a binary question, or that the proposal the electorate is being asked to consider is clear. It could be that the position of the government and parliament should be taken into account. On the one hand, strong government support for a particular outcome may lead to backlash effects; on the other hand it may be desirable that there is clear accountability for implementing a change. Other potential requirements could be that the issue is not too complex, there is sufficient public interest, and that the decision is not so urgent that it has to be taken within days or weeks.
The Commission is meeting today to discuss these important issues. No firm conclusions will be drawn at this stage, but the members of the Commission will explore ideas and consider what more they need to know to reach conclusions.
This post draws on background research prepared for the Commission and does not represent the views of the Commission or any of its members. Should any reader feel they have expertise that would assist in examining the questions raised above, they are welcome to contact Jess Sargeant at firstname.lastname@example.org.
About the author
Jess Sargeant is Research Assistant for the Independent Commission on Referendums, based at the Constitution Unit.