Opinion: The myth of the referendum convention

All three major parties committed to Lords Reform in their 2010 General Election manifestos, however Labour promised an elected Second Chamber via a referendum. This explains why Labour MPs dragged their heels during the Second Reading of the Lords Reform Bill, though a cynic may suggest that Labour did so not as its job as Opposition but because of a more insidious agenda to break up the Coalition. Nevertheless, Labour profess that their opposition stems from a belief that ‘constitutional convention’ requires that the Bill must include a referendum.

But does such a constitutional convention really exist?

In recent times there has certainly been evidence of referendums being used to establish a mandate for constitutional change. Since the Coalition was formed, a referendum was used for city mayors, the Alternative Vote (AV) and has been promised for Scotland Independence in 2014. Since 1997 Labour included referendums in the devolution settlements to Scotland, Wales and Northern Ireland, for regional Government in the North East (that was in 2004, if you had forgotten) and for the London Mayor and Greater London Assembly. Admittedly, this is at first sight a formidable list.

But let’s take a second look. Despite Labour’s grand claims of being committed to constitutional convention, the use of a UK-wide referendum was never used. Indeed there have only ever been two national referendums, the most recent being the result of the Coalition’s attempt to introduce AV, whilst the first happened back in 1975, the ‘Common Market Referendum’. But let’s think about this. If a constitutional convention for the use of referendums exists, surely it would follow that the use would extend to all major constitutional changes. Are we really suggesting that there have only ever been two been major changes to the UK constitution?

Well, no; the constitutional convention argument is a myth. For if Labour really are holier-than-thou, shouldn’t there at least be consistency in how they have applied referendums? They are calling for a referendum for Lords Reform from the Coalition and yet, in 13 years in Office, Labour neglected the need for a referendum over Lords Reform not just once, but twice. The House of Lords Reform Act 1999 was intended as the first of two stages, the second to commit the Lords to a democratic element. The Constitutional Reform Act 2005 removed the Law Lords from the Second Chamber and established a separate Supreme Court. Let’s also not forget that Labour promised a referendum on the EU Constitution and then signed the Lisbon Treaty, whilst the Coalition Government has promised a ‘referendum lock’ over the EU.

But it’s not just Labour who failed to abide by this myth that a referendum is a constitutional convention.

Was a referendum used for the Parliament Act 1911, which describes the composition of the Second Chamber as an interim measure until it could be constituted on a popular basis? No.

Was a referendum used for the Representation of the People Act 1918, which nearly trebled the size of the electorate and allowed women over the age of 30 the right to vote? No.

Even in recent times, the use of referenda for constitutional change has been sketchy at best. Does anyone remember being asked about changing the way we elect out MEPs? For the European Parliamentary Elections Act 1999, which was passed with the use of the Parliament Act changed the electoral system from FPTP to a closed list system. You won’t remember, because Labour never asked. Or how about the Human Right Act 1998, the biggest change to our judicial system? These are in no way small changes to the UK constitution and yet the need for a referendum was never invoked.

The bitter-sweet truth is that referendums are very rare in this country.  Referendums cannot give us a detailed answer – only really a yes or a no – and no clear indication of how the electorate came to the decision that it did. It is for this reason that the Establishment has traditionally treated them with caution and to suggest that there is a constitutional convention over their use is a myth.

* Alex Smethurst is a Parliamentary Assistant and candidate for Redland ward in Bristol in the local elections in May (written in a personal capacity).

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13 Comments

  • Charles Beaumont 17th Jul '12 - 2:00pm

    “referendums are very rare in this country” – correct. But what we are seeing is Labour and some Conservatives (Rory Stewart seems to be pushing this line, for example) trying to introduce a referendum convention as a new concept. So, to some extent, the very detailed and compelling historical arguments you offer aren’t that relevant.

    Where this gets difficult is that, as Liberals, I think it’s quite difficult to say that referendums are unnecessary. Particularly as we all agree that Parliament as currently structured is very unrepresentative. Ultimately, I think we’re all scared that the national unpopularity of the LibDems will mean that we lose any referendum on a policy that we support – and that leads us to try to find intellectual arguments against referendums.

  • Referendums are necessary sometime, but the equal power element of democracy relates to liberty, not democracy itself. I think the idea of holding a referendum on whether or not votes should count equally (AV) was absurd. But even more contradictory is to use a referendum to combat democracy. If we want to invoke popular support for the value of the current House of Lords, then we must simply hold elections, and the current Lords must stand for election. If we are democratic, a referendum becomes obsolete every few years anyway (as the electorate changes by c.1,000,000 every year).

  • Mark Argent 17th Jul '12 - 3:00pm

    My sense is that referenda *sound* a good idea, but are really tricky. It is very hard to reduce a complex question — such as House of Lords reform — to a question simple enough for a an answer of “yes” or “no” to be meaningful.

    In this instance the question would be (a) whether people support the idea of reform, and (b) which of the various models people favour — which could turn into a whole string of referenda. We’d probably some sort of “constitutional convention” to thrash out a credible possibility to propose — which may well be what the Commons is effectively trying to be in debating the issue.

    I’m also concerned that people seem to vote in referenda with remarkably little understanding — some of the things I heard from the “no” campaign in the AV referendum seemed more than a little strange. On top of that, we have those who will vote in a referendum “in order to send a message to the government” rather than on the substantive issue — as we heard in the AV referendum when people argued for a “no” vote “to give Clegg a kicking” as if their views on the deputy prime minister (at that moment) mattered more to them than the electoral process.

    What would be disastrous is if we had a referendum which got a “no” vote either for these sorts of dodgy reasons or because people rejected a particular formula for Lords reform, and so got saddled with no reform for a long time — much as the “no” vote on AV has probably put off the chances of electoral reform for a good while.

  • In this instance the question would be (a) whether people support the idea of reform, and (b) which of the various models people favour — which could turn into a whole string of referenda.

    Indeed – the public would have to explore the various possibilities, then examine the pros and cons of the status quo compared to the list of feasible alternatives, listen to the arguments of supporters and opponents of each proposal, judge how much democratic consensus could be achieved around each one, and finally cast their vote based on all of the above. In other words, what MPs do (or at least are supposed to do).

    What seems to be commonly overlooked is that we have a representative democracy, in which MPs are not elected to implement the will of the people, they are elected to implement what the people’s will would be if they did all the above. This is in recognition of the fact that anyone with even a part-time job wouldn’t have time to do so even if they had the inclination. Supporting the more frequent use of referenda could eventually undermine the principle of representative democracy, which IMO would be a very dangerous thing.

    And that’s even before considering the problem of accountability (or rather lack of it) in any decision made by millions of people together.

  • I think Charles [17th Jul ’12 – 2:00pm] has put his finger on an important point concerning the introduction of a “referendum convention”.

    Putting to one side the (very important) issues of actually holding a referendum (or a suitable alternative). we have over many years discussions and debates about the use of referendums, especially on our deepening relationship and integration with Europe. Such discussions are only natural following the precedence set by the 1975 EEC membership referendum. It is only natural to extend this debate to include UK political/constitutional change and whether this should also be ‘put to the people’ before enactment. This being particularly pertinent to the LibDems who enshrine the rights of the people “… to determine the form of government …” in their constitution. I therefore suggest we need to have this debate before we can really decide on how the HoL Reform Bill should proceed.

  • Stuart Mitchell 17th Jul '12 - 6:15pm

    Of the examples you give for constitutional changes brought in without a referendum, all of them (within living memory of most of us anyway) seem very trivial compared to the institution of a completely new national elected chamber of Parliament. If assemblies in Tyneside and London warrant a referendum, then surely a new HoL does.

    Interestingly, after telling us for years that Labour never bothered to reform the HoL, Lib Dem writers have suddenly started claiming that the 1999 reforms were so significant that Labour ought to have considered a referendum on them.

    Labour are right to insist on a referendum, but I think they should go further and put pressure on the government to radically improve the proposals. The big danger in putting the current plans to a vote would be that the electorate – who up to now know very little about the plans – would be much more likely to analyse them and come to the same conclusion as many recent LDV posters, i.e. that the proposals are abysmal. As the AV debacle showed, if people are offered such a weak alternative, then they will vote in droves to keep the status quo, and resent the expense of the referendum in the first place.

  • Denis Cooper 17th Jul '12 - 7:05pm

    The 1975 EEC referendum was a retrospective referendum, asking people whether they wished to continue with the status quo of being in the EEC, and if the answer had been “no” then withdrawal would certainly not have been impossible but it would have been complicated by the involvement of eight other countries.

    Among other considerations, those two factors militated for a “yes” vote.

    The 2011 AV referendum was a prospective referendum, asking people whether they wished to change from the very familiar and simple FPTP status quo to a new electoral system, which was depicted as fiendishly complex and expensive and destructive of democracy and moreover unnecessarily generous to that fool Clegg and his party.

    If Parliament had agreed to try out AV just for the next general election, after which people would be asked whether they wanted to change back to FPTP, on the basis of their real experience with it rather than on Tory-inspired media scaremongering and smearmongering, then there would have been a much better chance of getting AV established.

    Provided that the proposed change to the composition of the Lords could be considered easily reversible, then even more than for changing to AV for the Commons it would be legitimate for Parliament to agree to try out a new system for a fixed trial period, and then hold a retrospective referendum to ask the people whether they wanted it changed back.

    The Queen could be asked to guarantee that the retrospective referendum would be held as and when promised in the Bill, even if there had been a change of control in the Commons and government, by writing into the Bill that “Her Majesty may not give Royal Assent to any Bill which affects …” the holding of that referendum as promised.

  • Jonathan Price 18th Jul '12 - 8:27am

    I am very strongly against the use of referenda, whatever the topic. We have a system of representative government in this country, not one of direct democracy and I believe we should focus our efforts on getting that system to work as best it can. Constantly calling for referenda, as many Liberal Democrats do, does not strengthen democracy, it weakens it.
    Direct democracy as practised in Switzerland and in California is a very bad system indeed as anyone who bothers to look at the results can see. It held up votes for women in some cantons for example, until 1981, and it bankrupted the State of California.

  • Joe Litobarski 18th Jul '12 - 9:34am

    The real question is SHOULD there be a “referendum convention” in the UK whenever constitutional change is under consideration? This is certainly not a new idea: the 19th Century British constitutional scholar, A.V. Dicey, advocated it on the grounds that the UK’s unwritten constitution means there would otherwise be no popular check on fundamental changes. And the principle of nondelegation (particularly relevant in the debate on an EU referendum) dates back to at least John Locke in the 17th Century.

    On your point about there only having been two national referendums in the UK: I think that’s a fairly weak point. One of the purposes of holding a referendum on constitutional change is to bestow legitimacy. How legitimate would it be if the future constitutional arrangements of a region of the UK (e.g. the question of Scottish independence) were decided by the entire population. Would it increase legitimacy if a majority in Scotland (who, let’s say, sought independence) found themselves overruled in this choice by a majority in the rest of the UK? No, it obviously would not. So, I think every referendum (even regional and local referendums) should count towards the precident of a “referendum convention” in the UK.

  • Joe Litobarski 18th Jul '12 - 9:44am

    @Jonathan and @Catherine:

    There’s a big difference between referendums at the level of policy (as practised in Switzerland, for example) and referendums on constitutional change. There’s a strong argument that the former has no place in a representative democracy, but there IS nevertheless a good case for the latter (especially in the UK, with its unwritten constitution).

  • Joe Litobarski 29th Oct '12 - 2:26pm

    Hi Alex,

    I didn’t notice your reply until just now (Lib Dem Voice really should have a ‘subscribe to comments by email’ box)!

    There are certainly parts of the UK constitution that are unwritten (royal prerogative and constitutional convention are often cited as examples). However, fair enough, perhaps it might be more accurate to call the UK constitution ‘uncodified and partially unwritten’.

    My earlier points still stands, though!

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