Making referendums fit for a parliamentary democracy: Lords debate responds to recommendations of the Independent Commission on Referendums

On 19 July, a debate took place in the House of Lords on the impact of referendums on parliamentary democracy. During the debate, several speakers drew upon the recently published report of the Independent Commission on Referendums, which was established by the Constitution Unit last year to review the role and conduct of referendums. Jess Sargeant and Basma Yaghi summarise the debate.

On 10 July the Independent Commission on Referendums (the Commission) launched its final report; just a week later the pertinent topic of the role of referendums in parliamentary democracy was debated in the House of Lords. Discussion echoed many of the key points of the Commission’s report, which was regularly cited in support of speakers’ arguments.

Referendums and parliamentary democracy

A major theme of the debate was the tensions that can arise between referendums and representative institutions. In opening the debate its sponsor, Lord Higgins (Conservative), argued that allowing people to vote directly in a referendum diminishes the ability of elected representatives to employ their own judgment regarding the issue at hand. Lord Bilimoria (Crossbench) raised the predicament of MPs whose constituencies voted leave but who believed that it was in the UK’s best interests to remain in the EU. By way of example, he mentioned the difficulties some MPs had experienced when making their decisions as to how to vote on the European Union (Notification of Withdrawal) Act, an issue discussed by the Unit’s Director, Meg Russell, on our blog. Continue reading

Reforming referendums: how can their use and conduct be improved?

jess.sargeant.resizedalan_renwick_webThis week’s turbulent political events represent the fallout from a referendum where the consequences of a ‘change vote’ were unclear. This is just one of many concerns raised about recent UK referendums. To reflect on such problems and consider possible solutions, the Constitution Unit established the Independent Commission on Referendums. Here Jess Sargeant and Alan Renwick summarise the Commission’s conclusions and recommendations.

The Independent Commission on Referendums has published its final report today. This sets out almost 70 conclusions and recommendations, all agreed unanimously by the 12 distinguished Commissioners, who span the major divides in recent referendums. The report is the product of eight months of discussion and deliberation amongst the Commissioners, backed by comprehensive Constitution Unit research into referendums in the UK and other democracies. The Commission has also consulted widely with experts and the public, including seminars in each of the four constituent countries of the UK. We hope that, like the work of the Constitution Unit’s previous commission on referendums, this report will set the agenda for debate about the future use and conduct of referendums. 

Background

The use of referendums internationally has increased dramatically over the past three decades. This has been driven partly by changing public expectations of democracy: deference has declined and public desire for input in decision-making has grown. The UK experience has mirrored this trend. Following the first non-local referendum in 1973, there were three further such polls in the 1970s. A further nine non-local referendums have been held since the late 1990s – two of which were UK-wide.

Unlike many countries, the UK has no formal rules regarding when or on what a referendum should happen. As explored in an earlier blogpost, decisions to hold such votes have been driven by a mixture of principle and pragmatism. Nonetheless, conventions have emerged for holding referendums on fundamental questions to do with devolution and the European Union; in some cases, these conventions have even been codified in law. Referendums provide a mechanism for entrenchment in the absence of a codified constitution: decisions explicitly endorsed by the electorate are hard to reverse without further reference to the people.

The role of referendums in democracy

Referendums can enhance democracy: they can answer fundamental questions about who ‘the people’ are, strengthen the legitimacy of major decisions, and allow the public a direct say on major issues.

But referendums can also in some ways inhibit democracy. Voting is central to democracy, but so are processes such as deliberation, compromise and scrutiny. Binary referendum campaigns don’t necessarily create space for these: rather, they can encourage polarisation and division. Badly designed referendum processes can also risk undermining the institutions of representative democracy, which are essential for democratic governance across the board. There are also some topics, such as those affecting minority rights, where using such a majoritarian device may be inappropriate.

Thus, the Commission recommends that referendums be used with caution. Engaging the public in policy-making processes is essential, but there are often better ways of doing so. Continue reading

The Good Friday Agreement at 20: what’s next for Northern Ireland?

Alan_Rialto2 (1)Yesterday, in the first of two blogs on the Good Friday Agreement, Alan Whysall discussed where the Agreement had gone wrong and the benefits it has brought Northern Ireland since it was signed in April 1998. In this post, Alan looks at the future of the Agreement, a document he was involved in negotiating and implementing during his time as a civil servant at the Northern Ireland Office.

As conflict with the EU mounted over the Northern Ireland issue, some pro-Brexit voices in Great Britain began to argue that the Good Friday Agreement (‘the Agreement’) had ‘run its course’. They proposed no alternatives, however, for a position that broke a 20 year consensus in mainstream British politics.

Few in Northern Ireland, beyond established ultras, have gone so far. But some, predominantly unionists, argue in the short term for direct rule; some for changes to the mechanisms of the Agreement. There is also increasing talk of a border poll opening the way to a united Ireland.

Direct rule

Some see direct rule from Westminster as a good government safety net that Northern Ireland can fall back on, as in the past. From one perspective, it is remarkable that has not happened. Extraordinarily, no one has been in charge of government for over a year, as though having government is discretionary. The civil service carries out the administration on the basis of established policy, in a legal quagmire.

Nonetheless the British government has resisted the temptation to reinstate full-blown direct rule. This is understandable, as its own role would be seriously contested, given its dependence on the DUP for a Commons majority; so would the role the Agreement foresees for the Irish government. Most damagingly, it might be seen as the end of efforts to revive the institutions, unleash further negativity and probably drive the best people from politics. Direct rule, once turned on, is hard to turn off.

The present situation cannot endure indefinitely. At some point, much more government will have to be done. Continue reading

The Good Friday Agreement at 20: what went wrong?

Alan_Rialto2 (1)The Good Friday Agreement (also known as the Belfast Agreement) is 20 years old today, but recent events in Northern Ireland have shown that power-sharing has proven a difficult exercise. Alan Whysall, who was involved in the negotiations that led to the Agreement as well as its implementation, examines what has gone wrong since the Agreement was signed. A second blog, to be published tomorrow, will discuss what can be done to get the Agreement back on track.

Today marks the 20th anniversary of the signing of the Good Friday Agreement, (‘the Agreement’),  but the system of power-sharing government it established in Northern Ireland has not functioned for over a year. It was widely seen in Britain, as elsewhere, as a significant act of statesmanship, supported by both main parties. But it now appears at risk, as the Irish border becomes a critical issue in the Brexit negotiations.

What has gone wrong?

The Agreement was a political construct to underwrite the ending of a conflict and address the divided politics of a divided society. Progress in those three areas – conflict, politics and society – is interlinked. There was a hope that the division would reduce. In society it has, to some degree, though the progress is now in danger; in politics, less so.

The Agreement covered a wide range of matters besides devolved power-sharing government, but the main focus has been on that issue. The institutions were troubled from the start. Power-sharing government was not established until late 1999. Dogged by unionist reluctance to be in government with Sinn Féin while the IRA continued in being, it collapsed in late 2002. Five years’ direct rule followed, during which the IRA declared its war over and decommissioned weapons, and political negotiations culminated in the St Andrews Agreement of 2006 (with minor changes to the Agreement institutions). Re-established in 2007, the institutions functioned for 10 years.

Sinn Féin pulled out of the Executive in January 2017 citing lack of ‘respect’ from the DUP, essentially around Irish identity. Its key demand became an Irish Language Act, much debated though little defined by either proposers or opponents. Political negotiations appeared to be leading to agreement in February this year, when the DUP abruptly pulled out, its base apparently unhappy at the prospect of the (rather modest) language legislation proposed in the draft text.

DUP figures now speak of restored devolution being impossible this year; no further negotiations are in prospect. The new Secretary of State, Karen Bradley, has brought forward legislation at Westminster on the Northern Ireland budget.

Since last January, opinion in Northern Ireland is much polarised; the rhetoric of the parties, and to some degree the print media, has plunged into a partisan downward spiral. The spirit of partnership that was once to the fore in politics, and at times won votes, is withering, with few vocal proponents in the political realm. Continue reading

Why the UK holds referendums: a look at past practice

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Since the first referendum in the UK above the local level was held in 1973, there have been three UK-wide referendums and ten referendums covering parts of the UK. In order to inform its recommendations about the circumstances in which referendums should be held, the Independent Commission on Referendums is examining the circumstances in which UK referendums have been held. In this post, Jess Sargeant explores the political history of referendums in the UK.

1973 Northern Irish Border Poll

The first non-local referendum in the UK, the 1973 Northern Irish border poll, followed the sharp deterioration in the security and political situation in the preceding years. When the UK government imposed direct rule, it pledged to hold a referendum on Northern Ireland’s future status within the UK. The purpose was to demonstrate public support for the Union, which would act as baseline for future negotiations. Although the referendum was largely boycotted by the Catholic population, the overwhelming vote (98.9%) in favour of remaining part of the UK was used legitimise the continuation of the constitutional status quo.

1975 European Economic Community membership referendum

The UK’s first national referendum was held just two years later, in 1975, on membership of the European Economic Community (EEC). The UK had joined the EEC in 1973. In opposition, Labour was deeply divided on this. A referendum was first proposed in 1970 by Tony Benn, who opposed EEC membership. The idea gained little traction at the time, but future Prime Minister James Callaghan described it as ‘a rubber life-raft into which the whole party may one day have to climb’. Labour adopted the policy of putting EEC membership to a public vote in 1973, and this occurred after the party’s return to power in 1974. Continue reading

Monitor 68: A constitution in flux

The latest issue of Monitor, the Constitution Unit’s regular newsletter, was published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has seen the EU (Withdrawal) Bill pass from the Commons to the Lords; the failure of talks in Northern Ireland; and a significant government reshuffle. Abroad, Ireland is considering a permanent constitutional change and Japan has seen a constitutional first as its current emperor confirmed he is to abdicate. This post is the opening article from Monitor 68. The full edition can be found on our website. 

The UK is experiencing a period of deep constitutional uncertainty. In at least four key areas, structures of power and governance are in flux. Screenshot_20180308.210141 (1)

The first of these, of course, is the nature of the UK’s future relationship with the European Union, to which the Brexit negotiations will shortly turn. The degree to which the UK continues to pool its sovereignty with other European countries depends on the form of that relationship: how far, and on what issues, the UK continues to adhere to EU rules, align closely with them, or follow its own separate path. Theresa May set out her most detailed proposals yet in a speech at Mansion House on 2 March, advocating close alignment outside the structures of the EU Single Market and Customs Union. On 7 March, the President of the European Council, Donald Tusk, published draft guidelines for the EU’s position. As before, this emphasises ‘that the four freedoms of the Single Market are indivisible and that there can be no “cherry picking.”’ What deal will emerge from the negotiations is entirely unclear.

The government’s preferred path will face stiff resistance in parliament too. In late February Jeremy Corbyn signalled that Labour wants a UK–EU customs union (an issue also central to the conclusions reached by the Citizens’ Assembly on Brexit). Consequently the government now risks defeat on an amendment to the Trade Bill pursuing the same objective, tabled by Conservative backbencher Anna Soubry. Beyond that, an amendment to the EU (Withdrawal) Bill passed in the House of Commons in December guarantees that the deal between the UK and the EU agreed through the Brexit negotiations will need to be endorsed by an Act of Parliament in the UK. Brexit’s opponents are increasingly vocal and organised, and occupy a strong position in Westminster. The odds remain that Brexit will happen, but that isn’t guaranteed. Continue reading

Devolution and the repatriation of competences: the House of Lords Constitution Committee reports on the EU Withdrawal Bill

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The Constitution Committee of the House of Lords today published its report on the European Union (Withdrawal) Bill, which is set to have its second reading in the upper house this week. In this post, Stephen Tierney discusses the report’s findings on the devolution issues raised by the Bill and examines the suggestions for solving some of the problems posed by the legislation as currently drafted.

The House of Lords Constitution Committee has today published a comprehensive and critical report on the European Union (Withdrawal) Bill (‘the Bill’). The Bill’s second reading will begin in the Lords this week, with the government committed to bringing forward amendments to the Bill’s provisions regarding the devolved territories (in particular, the controversial clause 11), but as yet these have not been tabled.

Largely because of the government’s undertakings to change the Bill, and the fact that it trusts proposed amendments will emerge from negotiations between the UK government and devolved administrations, the Committee refrains from making its own detailed recommendations in relation to clauses 10 and 11. The Committee’s overall position is that: ‘the devolution settlements must not be undermined. We welcome the discussions that are currently taking place between the UK government and the devolved administrations to seek consensus on the approach of the Bill to meeting the challenges posed by Brexit.’ Nonetheless, the Committee is also clear that clause 11 as it stands is problematic and that amendments to the provision are ‘imperative’.

Continue reading