The referendum and the British constitution: strange bedfellows?

The EU referendum campaign has not been the finest advertisement for evidence-based, deliberative decision-making, but the genie of direct democracy is hard to put back in its bottle. Referendums seem here to stay, at least for the biggest constitutional questions, and quite possibly on an expanding range of issues. And at some point the country might have to develop some proper rules for when and how a referendum is triggered. Until then, this will be determined by a shifting blend of tactical consideration and democratic principle.

In some countries, including New Zealand, Switzerland and the Netherlands, referendums can be triggered by a citizens’ initiative, if a sufficient number of voters sign a petition. The UK lacks any such system: petitions to Parliament can at most lead to a parliamentary debate. Another common international model is an automatic requirement to hold a referendum to approve particular types of law – typically constitutional amendments. For instance, referendums must be held to approve any change to the constitution in Ireland, Australia and Japan.

The UK has no codified constitution, so can have no binding rule to hold referendums for the approval of constitutional reforms. Nonetheless, referendums have mostly been used to settle questions of an indisputably constitutional character. This applies to the three UK-wide referendums: European Economic Community (EEC) membership in 1975, electoral reform in 2011, and this week’s EU poll. It applied also in the Scottish independence referendum in 2014, and the various devolution referendums held in the 1970s and since 1997 (our Whitehall Monitor blog provides the detail).

A core principle invoked in favour of using referendums for constitutional matters is that the government of the day (whose parliamentary majority usually rests on under 50% of the votes cast) should not be able to implement fundamental reforms to the character of the state, or to change the rules of the electoral game, without the explicit approval of the people. Referendums can also be an effective way to secure the legitimacy of new institutions. The Scottish, Welsh and Northern Irish institutions have all benefited from having been endorsed by a referendum when first created. Proponents of direct democracy also argue that a referendum can improve public understanding and engagement with the political system.

But while almost all referendums have been on constitutional changes, not all constitutional changes are put to a referendum. House of Lords reform, the Human Rights Act, the Maastricht and Lisbon treaties were all passed by Parliament alone. The extension of Welsh devolution in 2011 was backed by a referendum, but the devolution of tax and welfare powers to Scotland earlier this year was not. The Government has now reversed its policy and decided that income tax powers can be devolved to Wales without a public vote. Referendums on whether to have a mayor were held in 2012 in the major English cities. Most said no.

City-regional ‘metro mayors’ are now being introduced without referendums. This inconsistency is often criticised. The House of Lords Constitution Committee declared in 2010 that “we regret the ad hoc manner in which referendums have been used, often as a tactical device, by the government of the day.” Referendums have been held to overcome government divisions, as in 1975, or as a concession to hostile backbenchers, as in 1979. This week’s poll ticks both these boxes. The Government can also decide at what point to refer an issue to the people. The vote on electoral reform in 2011 was a ‘post-legislative’ referendum, in which a Yes vote would have led to implementation of legislation that had already been enacted.

By contrast, in 1997, Tony Blair held ‘pre-legislative’ referendums in Scotland and Wales, designed to ensure that a clear popular mandate would help to override parliamentary opposition to the subsequent detailed devolution bills. But even if many past referendums have been a matter of tactics rather than principle, the referendum appears to be taking root more firmly in the soil of the British political system, in a way that will limit the discretion of future governments.

For instance, having been established by popular vote, it has always seemed highly improbable that the devolved bodies in Scotland, Wales, Northern Ireland or London could simply be scrapped by Westminster, as was the case with old Greater London Council (GLC) in 1985. Indeed, Westminster has recognised that its sovereignty is now qualified in this regard. The Scotland Act 2016 and the new Wales Bill both specify that the devolved bodies cannot be abolished without a referendum. Likewise, the European Union Act 2011 requires a public vote before any future treaty that transfers power to Brussels is ratified. And having held referendums on electoral reform for the House of Commons and Scottish independence in recent years, it is inconceivable that either of these changes could take place in future without a referendum.

The same applies to the reunification of Ireland: provision for a “border poll” is set out in the Northern Ireland Act 1998. From a traditionalist perspective, the referendum sits uncomfortably within the British system of representative democracy, in which it is the job of parliamentarians to deliberate and decide upon the great affairs of state on behalf of the people. Direct democracy has historically been associated with populism or worse: Clement Attlee even called the referendum “a device so alien to all our traditions… which has only too often been the instrument of Nazism and Fascism.”

Since then, deference to the wisdom of politicians has declined, and the idea that certain decisions are too important to be decided by Parliament alone has grown. But clear rules or conventions for when a referendum should take place have yet to be established.

Read our Whitehall Monitor blog – Never mind the ballots: referendums in the UK