Referendums: Constitution Committee Report

Lord Rennard Excerpts

Tuesday 12th October 2010 Lords Chamber

[Lord Rennard]

My Lords, the Select Committee was right to see significant drawbacks to the widespread use of referendums and to note that they have been used in the past for reasons of tactics rather than principle. There are good reasons why a referendum may sometimes be appropriate in a representative democracy, but there are also dangers to democracy from increasing the use of referendums. History teaches us that referendums can be used, as Clement Attlee famously observed, as,

“devices for demagogues and dictators”.

Even sincere attempts to use referendums for democratic reasons can fall foul of various problems to which elections may be less susceptible. Several witnesses to the Select Committee drew attention to the way in which the question on a referendum ballot paper is often not the question on which people actually vote. In 2003, a national newspaper attempted to conduct a referendum on the question of whether there should be a national referendum on the proposed constitution for Europe. Using newsagents as polling stations, it sought to give people their say on this issue. But evidence suggested that as many as 90 per cent of those who voted thought that the question had been about the single currency and not about the constitution at all.

The Select Committee report quotes Dr O’Malley of Dublin City University illustrating how in Ireland the first referendum on the Lisbon treaty became one on abortion and conscription rather than on the treaty. This was, as Professor David Butler described, a result of the disproportionate influence exercised by a single very rich individual who wanted to influence the outcome of that referendum. So referendums may not always be about handing power to the people, they may be about handing disproportionate power to certain wealthy groups and individuals.

More frequently, referendums can effectively become about support or opposition to the Government of the day. The timing of the 1997 referendums in Scotland and Wales, and the nature of those campaigns, suggested that they were as much about a referendum endorsing the change of Westminster government that had just taken place as the questions on the ballot paper about the future governance of Scotland and Wales. Elected Governments across the world are advised that if they wish to make changes that are endorsed by a referendum, they should generally do so before the so-called mid-term unpopularity kicks in, making it much harder to win such a poll, which can become a protest vote against the Government themselves.

When should a referendum be right in principle as opposed to a tactic to suit the party in power that proposes it? I think that the committee has produced a good list of the most obvious potential issues that may be considered of fundamental constitutional importance and could therefore be appropriate for a national referendum. The clearest case to be made for a referendum must be on the issue of how people elect their representatives. That is because the alternative to a referendum on this issue is that those representatives effectively choose for themselves the system by which they are elected. There is much we may learn from the experience of the referendum on electoral reform that is due next May.

The committee looked in particular at the issue of thresholds in referendums. But before we get to the referendum next May, there are attempts being made in the other place today to impose a threshold that 40 per cent of the electorate be required to endorse change before it can happen. If such a threshold had been adopted in the recent general election, requiring MPs to have the support of 40 per cent of their electorates, then only three out of the 650 Members of Parliament would have been declared elected. We do not have a minimum turnout threshold for electing MPs, MEPs, councillors or other representatives, so I cannot see the general justification for one in order to deem a referendum vote valid. The committee was therefore right, in my view, to recommend a general presumption against the use of voter turnout thresholds and super-majorities.

I cannot, however, agree with the committee’s conclusion about whether or not referendums can generally be held at the same time as other ballots, and nor do the Government. The issue of turnout, and therefore of legitimacy, may be linked to whether or not referendums can be held at the same time as other elections. It seems somewhat contradictory that some of those who make democratic legitimacy arguments in support of a minimum turnout threshold, in particular for referendums, also argue for the decoupling of referendums from other elections. All those of us who have been involved in elections know that it is hard enough to get people out to vote at any time without increasing the frequency with which they have to do so.

The argument against holding a referendum at the same time as other elections is based on the idea that people could not comprehend a referendum question that otherwise would be intelligible because they are also electing representatives on the same day. This defies the experience of many countries. It also defies past experience in this country, which noble Lords opposite may well remember; that of the referendum on creating a London Assembly and a mayor of London. That referendum coincided with the London borough elections in 1998, and we know that London voters had no difficulty dealing with these separate issues on the same day. I do not expect that we will ever be asking voters to deal with the series of questions and huge range of elections that voters in the United States often cope with.

There is also an argument about the cost of staging a referendum. The marginal costs of holding a referendum on the same day as other elections are but a small fraction of what the costs would be of a separate referendum, which are equivalent to the costs of a general election.

More fundamentally, one of the potential downsides of referendums identified by the committee is the problem of people treating the vote in a referendum as a vote on the Government of the day rather than as an issue of principle. This is actually ameliorated by holding referendums on the same day as other elections. People can use their elections to have their say on the Government of the day and who their representative should be, while at the same time using the referendum to decide an issue of principle. In a number of other countries, a referendum on future changes to the voting system has coincided with a general election held under the old system, thereby binding the hands of those elected under the old system to make any change required by the voter for future elections. That is a democratically healthy principle and one that I hope we may see in future.