When does the British Constitution require a Referendum? – V. Bogdanor’s opinion on the place for the referendum in the UK

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.

SCOTS DEGREES OF SEPARATION

Earlier this year I wrote on this Blog about various aspects of ‘Scotland and the UK’ here, here and here.  Now, the crucial question over the next two years is a superficially simple one: “What does ‘Scotland as an independent country’ mean”?

It should be a truism that voters at an election or referendum should know as much as possible what/who they are being asked to vote for.  This is essential for democratic and legitimacy reasons. Yet, so far, this doesn’t seem to be the case in the 2014 Scottish independence referendum.  It seems that qualifying Scottish voters will be asked simply to agree or disagree with a general, almost abstract, ‘in principle’ proposition, rather than to support or not support a particular constitutional ‘settlement’, as in earlier such referendums in 1975 and 1997.

What would independence mean?

The main – for most potential referendum voters, the only – ‘independence’ on offer is that of the SNP.  Some argue that this form of independence is in reality a strong variant of ‘devo-max’ (‘devo-extramax’? ‘independence-lite’?), because of all the proposed continuing links to UK institutions and policies etc..  Does this matter?

In some sense, all independence in the modern world is relative, especially in practical political, economic and military terms.  The present UK’s sovereignty, practical as well as legal, is less than pure and total, because of membership of bodies such as the EU, NATO and UN, for example.

Again, it can be argued that the SNP’s evolving version of Scottish independence is driven by the realpolitik of winning over voters to the YES camp in 2014, rather than by some theoretical or romantic ideal of independence.  It fits in with the SNP policy of gradualism, presenting post-2014 independence as simply the final, painless step in the devolution journey, completing the process begun in the late 1990s of the creation and development of a Scottish Parliament (and accompanying Government).  In this scenario, many voters may not even realise the political and constitutional significance of the referendum.

Yet, notwithstanding any camouflaging words and policies, at some point there must be a Rubicon to be crossed when Scotland becomes, and is recognised as such, an independent state.  I’m not an international lawyer, but there are at least two relevant aspects of independence here, where Scotland’s status becomes definitively more than devolution, federalism or the like, still ultimately part of a wider independent state, ie the UK:

  • International recognition of independent statehood: it is not just a question of whether Scotland should itself belong to bodies such as the EU, UN or NATO, but whether it can be, is qualified to be, a member of such bodies;
  • Legislative supremacy: the post-independence Scottish Parliament, not the Westminster Parliament, would be the repository of ultimate legislative power, whether or not limited by any ‘higher’ written constitution or by external supranational bodies like the EU.

Pathways to independence

In theory there are various ways in which Scots can have the opportunity of giving ‘informed consent’ to independence.  Whether or not some of these are politically practical or realistic is a different question.

While SNP gradualism implies a degree of ‘independence-by-stealth’ in winning a referendum, there would presumably also need to be some parallel narrative or ‘creation myth’ which is more heroic, resonant and visible, recognising and glorifying that crossing of the independence Rubicon.  This may require, however symbolically if not (in terms of the various relevant jurisdictions) legally, some form of ‘Treaty of Disunion’ as the constitutional bookend to the 1707 Treaty/Acts of Union.

From the UK point of view, Scottish independence would presumably be achieved legally by an Act of the UK Parliament, whether or not accompanied by, or incorporating, any separate ‘treaties’ or other written agreements.  In Scottish domestic symbolic, as well as international law, terms, such a Treaty of Disunion would be made between ‘independent’ states, rather than between a sovereign state and one of its component parts, and it would be this, and any accompanying ‘declaration of independence’ and Constitution, which would be regarded within Scotland as the crossing of the independence Rubicon.

What role, if any, would or should the Scottish people have in any such process?  If there is no pre-referendum detailed elaboration of what ‘independence’ actually means, other than what is said by the various parties and any official umbrella YES/NO groupings, there is a democratic case for a further recourse to the people, by way of a second referendum or otherwise, once a detailed independence deal is finally negotiated, .

If that is not feasible, then there is an argument for some form of ‘constitutional convention’ where the people’s representatives can discuss and ‘decide’ on the terms of Scottish independence.  This would be in tune both with recent Scottish constitutional practice, and with more general modern trends towards participative democracy.  This could be held after a YES vote, and any such ‘settlement’ can then form the basis of whatever constitutional mechanisms (treaties, legislation etc) are used to achieve independence.  It could even be held before the 2014 referendum, so that voters can then see, in detail, the independence package they are voting about.  Scotland has some, albeit unofficial, experience of constitutional conventions; the Commons Political & Constitutional Reform Committee under Graham Allen is currently holding an inquiry on this very subject, and the McKay Commission on the West Lothian Question can more usefully spend its valuable time and expert resources in examining how inter-parliamentary relations with the UK can positively contribute to any such convention and independence-pathway process.

The role of general elections?

There is also the fact of upcoming elections, not just the Holyrood elections in May 2016, but the Westminster elections in May 2015.  If there is a YES vote in late 2014, what would be the purpose, even the point, of the UK general election in Scotland mere months later?  Never mind the parliamentary and governmental impact of the departure of all Scottish MPs at some future date during that 2015 Parliament, would these MPs be, and be seen to be, mere lame ducks, or will they be regarded (if only by themselves) as the UK-level supervisors of the independence process?

And what of the 2016 Holyrood election?  Is the idea that it will be somehow transformed into the first elections to a sovereign Parliament of an independent Scotland, or will they be the last elections to a devolved Parliament within the UK, a Parliament largely devoted to negotiating and finalising a independence settlement?

Arguably, either or both these elections could be utilised to contribute to some form of constitutional convention, albeit a post-referendum one.  Either formally or otherwise, the Scots MPs elected in 2015 could form part of such a convention, perhaps with the existing MSPs and, if thought desirable or necessary, other representatives of Scottish civil society.

Time is short

The late 2014 referendum may seem a long way in the future, but, in constitutional terms, time is actually very short, especially when considering such novel, complex and highly sensitive, even incendiary issues such as those discussed in this blogpost.  The Scottish referendum electorate – as well as ‘expatriate’ Scots, and everyone else in the rest of the UK – do not just deserve to hear the views of all interested parties, but should also start making known their own views on their constitutional future NOW.

What next for Elected Mayors? Localism Catch-22

Boris Johnson may have won the Mayoral race in London, however the rest of England didn’t take to a “Boris for every city”. Nine out of ten cities participating in the coalition’s referenda on directly elected mayors (May 3) rejected the idea; only Bristol backed the proposals.  The referenda were also overshadowed by poor turnout rates with an average of 28.8% across the country and only 24% in Bristol. Given that localism is one of the coalition’s main drives, what next for the government’s credentials in this area?

The proposed “Mayors Cabinet” will unlikely go ahead now, but the mayoral agenda will certainly not end here. Liverpool and Bristol will “flaunt” their mayors to influence national policy as London has done in the last decade[1]. The coalition will do likewise to save face and rejuvenate their localism strategy. Other cities therefore may find themselves wishing for mayors and they don’t have to wait on another national referendum. Let’s not forget that Liverpool, Salford, Doncaster and Leicester have all appointed mayors in the last year through local referenda or local council agreement. The “big-bang” reform the coalition hoped for hasn’t quite happened but change is still likely to creep along. One idea gaining traction is “metro mayors”, which would look after transport, planning and policing across city-regional travel-to-work areas (an idea Lord Adonis will discuss at a Constitution Unit seminar on May 22). [2]

The low turnout raises deeper questions on public enthusiasm for localism. With only 28.8% of people voting nationally, can the government carry localism forward? Police and Crime Commissioners (PCCs) are due to be elected on 15 November, whose credibility will be questioned on a 10-20% turnout. Localism has good devolutionary intent but people need to feel involved. Citizens should have had a hand in shaping mayors’ roles before the referenda and we cannot be surprised that people voted against an office they did not call for with undefined powers, pay and job description.

Ultimately, the coalition has tried to provide the groundwork for a system few are yet interested in using and found themselves in a Catch-22 situation. How does one force localism from the top? To continue driving the localism agenda forward the government needs to gain this hard-face experience, and refocus on facilitating rather than imposing policy. Elected mayors may have a future yet, but it now lies in the hands of local communities rather than Westminster.

Judicial Independence 1, Irish Government 1: How not to run a referendum campaign

The voters of Ireland have been busy. On 27 October they elected a new President, Michael D Higgins (who was inaugurated last Friday – more on this election in a moment). They also voted in two constitutional referendums that dealt with the relationship between judges and politicians (the Twenty-Ninth and Thirtieth Amendment of the Constitution Bills respectively). The proposed Twenty-Ninth Amendment sought to introduce a rather complex mechanism by which the pay of judges could be reduced (as the pay of all other Irish public servants has been in recent years). The proposed Thirtieth Amendment sought to create a robust power of parliamentary inquiry.

The Irish electorate voted yes to the Twenty-Ninth Amendment (and by quite a margin – roughly 80%-20%). This proposal was the subject of a previous post of mine (which can be read here). In very brief summary, while I don’t think there can be a problem with the general principle that judges’ pay can be reduced in a crisis, the wording of the amendment is very vague and, for that reason, potentially a threat to judicial independence in future.

By contrast, the electorate voted no to the Thirtieth Amendment (by a narrower 53%-47%). This would have conferred a power to conduct inquiries into ‘any matter’ and allowed the Oireachtas to make findings of fact. It also included what could potentially have been an ‘ouster clause’ excluding these inquiries from the oversight of the courts.*

What explains the differing results? For some, the prospect of more robust parliamentary inquiries in general suggested a move towards a sort of neo-McCarthyism. This is perhaps a little unfair, but given that the government was proposing that one of the first subjects to be inquired into would be the Irish banking crisis (arising out of which criminal prosecutions are still expected) this was not so unlikely as to be dismissed as nonsense.

The results perhaps also disclose a general hostility to authority – particularly to the political and legal elite – in the midst of the current crisis. Whilst the electorate were happy to reduce the pay of the legal elite without bothering unduly about the niceties of constitutional law, they were hostile to the demands of the political elite for additional power in the midst of the crisis, for which politicians are widely perceived to bear the lion’s share of responsibility. As the inquiries amendment was framed, it appeared that this power came at the expense of the rights of the individual citizen.

A lot must be attributed to the nature of the campaign, however. The referendums ran alongside one of the most colourful and controversial presidential election campaigns Ireland has ever had, featuring no fewer than seven candidates. One candidate was repeatedly quizzed on letters of support he had written to an Israeli court on behalf of his former lover, who was convicted of the statutory rape of a teenage boy. One candidate suggested darkly that a minor car accident that turned out to be the result of an accidental tyre blow-out was in fact sabotage and part of a campaign against her. One candidate was Martin McGuinness. Against this lurid backdrop the referendum campaigns competed vainly for attention, and did not indeed get any until the dying days of the campaign. One lesson for future referendum campaigns, then, is to hold them by themselves.

The government’s case was not assisted by delaying publication of the text of the proposed referendums until the last possible moment, just weeks before voting day. It was also not helped by its combative attitude to criticism of the referendums. A late intervention by eight former Attorneys General emphasising the threat to the rights of the citizen and urging a no vote on both proposals was dismissed by the Minister for Justice as ‘nonsense’ spoken on behalf of vested interested in the Courts and the legal profession. Given that the concerns expressed were about the attitudes of the Government this did not inspire confidence.

This mixed result could have been avoided by making the amendment process more open. If members of the public (including lawyers and anyone else interested) had been allowed to participate in the formulation of the text of the amendments, rather than being presented with a badly written fait accompli at the eleventh hour, the resulting text of both amendments would likely have been better and the result for the Government and for the Irish Constitution more favourable. With any luck, these lessons will be taken on board for the Government’s promised, but still elusive, Constitutional Convention.

* This was proposed as a means of overruling a Supreme Court decision that restricted the power of the Oireachtas (parliament) to hold inquiries. In the Abbeylara decision (Maquire v. Ardagh [2002] IESC 21) the Supreme Court held that the Oireachtas has no inherent power to conduct inquiries that make adverse findings of fact against individuals, and can only do so where a specific power is conferred by statute or the Constitution.

The text of the potential ouster clause ran: ‘It shall be for the House or Houses concerned to determine with due regard to the principles of fair procedures, the appropriate balance between the rights of persons and the public interest for the purposes of ensuring an effective inquiry’.

The AV referendum will be lost

Five reasons why the AV referendum will be lost

Yes to Fairer Votes launched their formal campaign for the AV referendum on 2 April.  Electoral reformers fondly suppose that if only the public were offered a better alternative to first past the post, people would be bound to vote Yes.  This piece does not go into the respective merits of AV and first past the post.  It simply forecasts that AV will be defeated, for the following reasons:

  • The public know nothing about electoral systems, and care even less.  The Constitution Unit did detailed research on public attitudes to different voting systems for the Independent Commission on the Voting System, and we found we were plumbing deep wells of ignorance.  The Yes campaign have a huge mountain of ignorance and indifference to overcome.  The government have given them very little time.
  • Even if the Yes campaign manage to engage people’s interest, they will find it hard to explain the difference between AV and FPTP.  AV is not a proportional system.  The overall result will not be that different from FPTP.  In the 2010 election it is estimated that the Conservatives might have gained 30 seats less, the Lib Dems 20 seats more, and Labour about the same.
  • The public will be confused by the arguments in the referendum, some technical, some contested, some misleading.  Research shows that when the public find political issues difficult or confusing, they look to political leaders that they trust to give them a lead on how to vote.  But the AV referendum offers no easy cues.  The Conservatives will campaign against, the Lib Dems for, and Labour are divided.
  • Clear signals from political leaders will be masked by the elections also being held on 5 May.  There are devolved assembly elections in Scotland, Wales and Northern Ireland, and local government elections in 80% of England.  The political parties will put their time and energies into campaigning in the elections, and not the referendum.
  • This is what happened in Canada, where they held referendums on electoral reform at the same time as provincial elections in Ontario (2007) and British Columbia (2009).  The political parties were silent about the referendum issues, and electoral reform was defeated in both cases.  The same is likely to happen in the UK.

The Welsh referendum result: Wales said Yes

The results from the referendum on the National Assembly’s legislative powers on 3 March produced a very clear mandate for the Assembly to have primary law-making powers: the vote is 517,132 votes in favour, and 297,380 votes against (or 63.5 per cent to 36.5 per cent).  There’s news coverage from the BBC here and the official results from the Electoral Commission are here.  Of the local authority areas used for counting, only Monmouthshire voted No – and that by just 320 votes.  While the Yes vote appears to have been weaker in eastern parts of the country, it varied relatively little across the country (and much less than it did in 1997).  There’s a good discussion by Roger Scully of the result on the BBC News website, available here.

Turn out was 35.2 per cent; not high, but higher than in some other referendums, and higher than some predictions.  Given the limited public visibility of the campaign (compounded by True Wales’s decision not to apply to become a designated campaign organisation), the inherent obscurity of the issue and the confusing nature of the question, that has to be regarded as a comparatively strong showing.  Rachel Banner of True Wales has accepted that it’s a clear mandate for an Assembly with legislative powers.  This result suggests strongly that legislative devolution is indeed the settled will of the people of Wales.  Perhaps the shadows created by the defeat in 1979 and narrowest of victories in 1997 will now pass into history.

Ironically, the result comes just as the Boundary Commission for Wales announces how it plans to review the Westminster constituency boundaries, so as to reduce the number of Welsh MPs from 40 to 30 (the same quota as for England or Scotland).  One of the problems that hobbled No campaigners was the prospect of reduced representation at Westminster whatever happened.  If Wales had voted No, it would have faced the double whammy of that combined with limited devolved legislative powers – a sure way to minimise Wales’s overall influence over government.

The referendum result has triggered a flurry of activity on other fronts.  First, there is the question of bringing the new powers into force.  The First Minister announced on Tuesday that an order regarding that would be laid later in the week for debate on 29 March, and providing for the new powers to come into effect on 5 May (polling day in the Assembly elections, of course).   His statement is here.  That means the new Assembly will have primary law-making powers as soon as it meets.  At the same time, work is underway on formalities like letters patent and a Welsh seal for signifying Royal assent to Assembly Acts.

Second, the debate about the Assembly’s finances has revived.  The referendum put this on hold – Welsh politicians didn’t particularly want to talk about it during the campaign, and the UK Government had signalled that it would only take action if there was a Yes vote.  But now confusion reigns.  Some politicians – including Nick Clegg and Cheryl Gillan, both speaking at their parties’ conferences in Cardiff at the weekend – have stuck to the Coalition’s commitment in the Programme for Government about a further commission to look at the issue, despite the work of the Holtham Commission.  Other UK politicians have moved beyond this and talked about implementing Holtham, though with greater interest in tax powers than a ‘fair’ (needs-related) grant.  Carwyn Jones, on the other hand, is keener on a ‘fair grant’ than tax-varying powers.  There’s also the question of whether a further referendum on that would be needed.

All this makes for exciting times in Wales’s developing constitution, in the short interval between the referendum and the start of the Assembly election campaigns.