The Constitution Committee had its final evidence-taking session yesterday on its inquiry into referendums. The witness was Michael Wills, the minister of state in the Department of Justice, who has responsibility for constitutional issues. He came out with some interesting observations.
When asked about the role the government should take once a referendum campaign was under way, he volunteered that ministers should be free to express their views on either side of the debate. He also argued that referendums should only be held on issues of fundamental constitutional importance. He conceded, however, that it was not possible to define the dividing line between a fundamental and non-fundamental constitutional issue. He did not think that providing for an elected second chamber constituted a fundamental constitutional issue. I pointed out that this meant that the government took the view that introducing an elected mayor of London was a fundamental constitutional issue but that introducing an elected second chamber of the legislature was not! It certainly shows the difficulties of drawing the dividing line.
If you’re going to do what I want then there’s no need for a referendum. However, other people might get annoyed at this approach.
I consider that any change to the Lords should be put to the people, because it is the nature of party politics that the government in power will try to make it favourable to their own side.
If it comes to a referendum on voting, then it is important that it’s not just (as proposed by the PM) a choice between the existing system and Alternative Vote, but that all options should be included, because they all have advantages and disadvantages. One suspects that the PM’s proposal is an example of my previous paragraph. While we’re at it, the voting scheme for MEPs should also be examined because a list system means we get to vote for who the party wants, not who we want.
If things are considered non-urgent, then there’s no reason why we couldn’t have a standard place for a referendum on anything relevant on local election day because the infrastructure is already there.
“It certainly shows the difficulties of drawing the dividing line”
It doesn’t! If it hints at anything it shows that ministers have referendums when it suits them irrespective of the constitutional importance of the issue.
Croft: That’s a different dividing line, which is what I was pursuing with him. He conceded that the issue would need to be resolved on a case-by-case basis, which was essentially to concede the dividing line you identify.
On the committee, some of the intellectual contortions/knots some of the witnesses/peers were getting themselves into by trying to have those referendums they wanted while being able to ignore/set aside (thresholds, advisory only) those they didn’t did make me smile/scowl in equal measure.
Clear as mud these referendums results!
Croft: Exactly. It is very much a case of ‘I want a referendum on the things that concern me, but not on other issues’. No one has managed to generate a watertight and objective means of determining when a referendum should be held and when it should not. At least if one has a principled objection to referendums, one can avoid these contortions.
Gareth Howell: You identify a key problem!
“No one has managed to generate a watertight and objective means of determining when a referendum should be held and when it should not.”
I’m not clear they have ever seriously tried. Other countries manage perfectly well to have referendums – albeit on changes to single document constitutions – but I simply don’t accept that parliament couldn’t define a list of protected areas or concepts and let the supreme court decide if a proposed change falls into that definition. Rather I think politicians have used the ‘difficulty of definitions’ as a means to continue to be able to remain unconstrained in using referendums on their own whims.
Certainly there is a intellectual purity on both ends (those for and against referendums on all constitutional issues) that the ‘pick and mix brigade’ don’t achieve.
Croft: Some claim to have tried. The key difference with most other systems is, as you touch upon, the existence of a codified document. Attempts to come up with areas or concepts has to some extent been tried before in slightly different contexts – if I recall, civil contingencies and/or regulatory reform – but creating watertight lists is highly problematic. I’m also not sure leaving the grey areas to be resolved by the Supreme Court is exactly the way forward.
As the SC is trusted and left to resolve grey areas in every other matter of law I’m not sure how consistent it is to decide this area is an exception. If it is left to politicians then barring the use of super-majorities in both houses I can’t see how party politics won’t fatally distort the process
Of course, another problem is who determines the text of the question? That can have a big influence on the outcome. Wording it such that the answer you want is ‘yes’ seems to boost your chances of success, so you can end up with a battle over “Should the UK remain part of the EU?” or “Should the UK leave the EU?”, to give one example.
Lord Norton’s questioning of a means to identify when a referendum should be held, is not quite as silly as it sounds.
The discipline of forensic investigation, for example, examines evidence mathematically in the same way as a Geometer.
I forget for the moment exactly the procedure
but Euclid would have
Conjecture
Axiom
Theorem
Proof
I have missed something there, but this method would surely be utilizable to establish the need for Referendums.
detectives and barristers prove or disprove their cases with it, so perhaps a referendologist should too.
All these methods remind me of Wedgwood Benn and ennobled Kinnock in the mid eighties, who did quite a lot of research in to methods of voting, which resembled market research rather than what you would consider to be a “vote”.
Market research can lead you in to all sorts of alleys where you get, AND WANT, what you really do not need at all, but they certainly seemed much more desirable methods of finding out than a Yes/No referend…um.
I don’t know whether Benn’s research or any other, was made available online at any time.
“Lord Norton’s questioning of a means to identify when a referendum should be held, is not quite as silly as it sounds.”
Damned with faint praise!
Lord Norton,
“Damned with faint praise!”
I had a very enjoyable exchange with the late George Thomas Lord, Tonypandy, in the days when Lords WERE Lords, asking me what I thought of the Upper House, in which he was seated after being such a successful speaker, and I replied, with a comment later
expressed by him in an open invitation to
“join us, without further ado”,
that the Other Place,
“Damns with faint praise”
whilst the Lords,
“Praise with fulsome damnation”.
I still can’t quite decide whether the same is still the case, but in view of the noble Lord Norton’s description of himself, in the
Upper house, perhaps the Lords have come down to earth a little, and the Lords are no longer in the Heaven they once were.
I know that the noble lord Norton is the soul of charm really!
Dave H: Absolutely right. There are two potential problems in respect of the wording. One is the possibility of intentional bias. Another is the problem of unintentional bias. The wording may be interpreted in such a way by voters that was not intended by those who drafted the question. Some of the material in Butler and Ranney’s book on referendums is illuminating on the extent to which people misinterpret the question.
You touch upon another aspect. That is, there is a slight bias in favour of a ‘yes’ vote. Apparently, people prefer to come across as positive rather than negative. I have variously canvassed putting two neutral and mutually exclusive statements on the ballot paper. However, the Electoral Commission prefer to have a question that can be answered yes or no because of the implications for campaigning. It is much easier to have a ‘vote yes’ or ‘vote no’ campaign than one based on particular statements.
http://www.harstadresearch.com/
The Colorado business which assisted Barak Obama in his historic victory is a case in point, although in that instance it was only a two horse race.
They take briefs for Market research and referendums, but if the referendum had half a dozen questions for the voter to evaluate, and possibly not know why they were being asked except that his opinion is sought, you might then get worthwhile results.
Until then I shan’t be bothering with referendums!
Consultation of the People by means of a Referendum on more mundane matters might well be costly and wasteful, however, any proposed change to the Constitution including The Act of Settlement, The Organisation of Parliament or the Lords or the giving away to the EU or any other organisation, the Rights and Freedoms to decide our own destiny as a country must be subject to Referendum.
Results of referendum must be adhered to by Governments.
The recent debacle in Ireland over the new constitution, demonstrates the danger of Governments granting referendum, and when not getting the answer they want, rerunning it, using fear of consequences to get the result they wanted.
I fear that the Government has an agenda to break down anything in the constitution, which does not meet their aspirations for social engineering a society as moderate, socialists, who will vote labour as a matter of course.
If we were to hold a referendum on Proportional Representation for example, I am convinced that it would succeed, however, as it is not in the interests of the 3 main parties, it will not be held.
Party electoral colleges to choose a List for each party, then to be submitted to the electorate, some weeks after the general election of the first chamber.
By then you would know which party is the party of government and the lists would be proportioned for a government majority but still be able to vote for individual candidates, in their areas/constituencies, on the list.
Here’s another possible use for a referendum: amend the Parliament Act so that if the Lords delay legislation for a year or we’ve had four ping-pongs between Lords and Commons and the Commons wishes to impose its will, the matter is put to the people instead of the Commons automatically prevailing. It provides the Lords with a means to block poor legislation with the authority of the electorate.