Referendums: Getting it right next time

No one needs any help demonstrating the problems with the current ad–hoc manner in which the UK conducts referendums.

But while it might be tempting to argue that the best solution is simply to stop having them, there are problems with that approach. 

First, I’m not at all sure it is politically sensible, or intellectually honest, to say that since lies, fraud, and gross misconduct constituted the bulk of the Brexit campaign the solution is simply to have no more referendums. There have been lies, fraud, and misconduct in political campaigns since electoral politics began. The solution has always been to find better ways to conduct the campaigns, not to scrap the practice.

The Liberal Democrats are a party fundamentally committed to opening up political discourse, and to doing so responsibly. Referendums are fraught with peril and, ironically, run the risk of being distinctly undemocratic, but that does not mean there cannot be a role for them as part of a broader expansion of legitimate political expression.

And as recent votes in Ireland have shown, to take one example, referendums can play a crucial role in securing progressive social gains.

As another example, here in Massachusetts, where I now live, voters last November defeated by an overwhelming majority an attempt by fundamentalist Christian groups to repeal a law designed to protect transgender people by allowing them to use the restroom of their choice in any building open to the public.

By permitting the question and conducting the referendum, voters had the opportunity to affirm the actions of their legislature and governor and stop in its tracks the type of hate and fear that festers when it can pretend to a legitimacy it does not possess.

Wary of referendums as I am, I’m not proposing a radical overhaul of the UK political system to allow for the types of confirmatory votes we hold here in Massachusetts, where we can also vote by referendum to instruct the legislature to introduce legislation.

Massachusetts, incidentally, makes it much harder to initiate a referendum question than do many U.S. states and, in many cases, and wisely so as the government problems caused in referendum-happy states such as California help demonstrate.

Referendums shouldn’t happen often.

They should only happen with good reason.

But there are times when they might well be appropriate.

It might be a long time before the UK should have one again—setting aside the possibility of needing one to fix the Brexit balls up—but the continuing mess the last go around caused might, ironically, make this the moment to push for including in the next election manifesto the promise to propose legislation that would go a long way toward securing a practical way to integrate referendums into the United Kingdom’s democratic practices, while preventing the massive damage reckless referendum mongering can create.

Such legislation would also make it almost impossible for future prime ministers to pull a Cameron and call a referendum in a short-sight and ill-conceived attempt to buy off the bullies.

I would suggest that legislation establish that future referendums could be used to instruct the UK parliament so long as the following criteria are met:

  • An initial referendum would stipulate the outcome legislation triggered by the referendum would need to deliver and the deadline by which that legislation must have passed parliament. 
  • To succeed, the referendum would require a plurality of the total number of votes cast and a plurality of votes cast in the majority of the constituent parts of the United Kingdom. That is, in addition to an outright plurality overall, there would also need to be a plurality of votes in favour of the proposal cast in three out of four of Scotland, Wales, Northern Ireland, and England. By defining the requirement as a majority of regions, no change in the legislation would be required should Scotland or Northern Ireland, or both, cease to be part of the United Kingdom. 
  • After legislation triggered by a referendum passes, a second referendum would have to be held and the legislation would take effect only if a plurality of all votes cast approved the legislation and a plurality of voters in a majority of parliamentary constituencies across the UK supported the legislation.

This proposal would mean that a successful referendum process would have required a plurality of all votes cast on two occasions, the second occasion being a vote on specific legislation detailing exactly what would happen after a confirmatory vote, and it would mean that triggering the writing of such legislation, and then its ultimate approval, would also have to have been approved by more than one part of the country in the first place and in more than half the parliamentary constituencies in the second place.

Should legislation pass parliament that was made subject to approval by referendum but that was not triggered by a referendum, the resulting referendum should be held with the requirement that it met the third bullet above to take effect.

This proposal removes advisory referendums from the equation, but if the Brexit referendum has taught us anything it is that advisory referendums are strange, unnatural, and unhelpful beasts. 

It also, rightly, speaks only to UK-wide referendums, leaving to devolved authorities the manner in which they conduct referendums on their affairs.

A two-step referendum process with an intervening period for parliamentary debate would serve as a check on those who would lie, cheat, and defraud their way to an initial electoral victory. That’s a lesson we can take from the first Brexit vote: You can lie successfully, but cannot avoid being found. The problem this time is that no mechanism not being cobbled together as it goes seems to exist that allows redress. 

I recognize two obvious—but I suspect solvable—gaps in this proposal: It does not establish the mechanism for calling a referendum. One idea might be to adopt a model similar to that the Massachusetts legislature is required to follow when proposing amendments to the state constitution: The legislature has to pass the exact same language including what the specific outcome will be (down to the comma) in two consecutive legislative sessions before a proposed amendment can be put on the ballot. 

I also do not address what would happen if parliament failed to pass legislation in response to a referendum that had cleared the first hurdle. I can think of a couple of possible options here, perhaps the most attractive being that failure to pass legislation would automatically trigger a general election, which would, if the matter were still of importance to the voters, largely be decided on the subject of the referendum.

Referendums are not to be taken lightly.

But despite the complete fiasco of the latest one, I’m not sure it’s wise to make them impossible to hold. 

 

* Chris Fauske, an Essex-native, is now is a resident of Massachusetts.

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21 Comments

  • Mick Taylor 26th Jul '19 - 4:06pm

    Referendums strike at the heart of UK democracy. Our system is to elect representatives to the House of Commons to make decisions on our behalf. A referendum is a way of by-passing Parliament, usually because some people disagree with Parliament or because a Prime Minister doesn’t want to make a decision (Viz. Wilson or Cameron)
    So I would stop any further referendums, make Parliament representative through STV elections and let Parliament do its job

  • Graham Evans 26th Jul '19 - 10:53pm

    @ Mick Taylor Absolutely correct. As Thatcher rightly declared referendums are a device of dictators and demagogues, dangerous to minorities and destructive of parliamentary democracy. They are the tyranny of the majority, so amply demonstrated by the Brexit referendum.

  • Unfortunately parliament is incapable of doing its job. The problem is it is full of people like wee Mogg who wish to return us to a golden age. Your joking you say, I fear not as his latest missive lays bare
    Leader of the House of Commons Jacob Rees-Mogg has issued a set of rules for staff in his office to follow, including a list of banned words and a requirement to use imperial measurements
    Source Indpendent.

    No matter how bizarre I try to paint the brave Brexiteers, they exceed expectations. Truely the country is led by fools who are followed by sheep baaing Brexit, Brexit, Brexit.

  • Nonconfomistradical 27th Jul '19 - 7:49am

    “Unfortunately parliament is incapable of doing its job. The problem is it is full of people like wee Mogg who wish to return us to a golden age.”

    A legacy of safe seats?

  • Democracy is the ‘will of the people’ and, by definition, a referendum is really the only way of reflecting that. Jacob Rees-Mogg represents a Remain voting constituency so is he truly representing his constituency with his stance.
    The party political system has subverted the link between the people and the MP with the result that, every 5 years, the people vote and then they are ignored until the next time round. That is the root of the issues which caused the Leave vote in 2016. Even in this party, when the Gateshead Conference overwhelmingly voted against the NHS cuts and was ignored, you can see that democracy is often ignored.
    Switzerland makes referenda work. We may laugh at them having so many but it works. They have a place but you need two things – one is an engaged electorate (and you only needed to watch the BBC news at 10 last night to see the problem there ‘I never vote but I’d vote for Boris’); the other is an honest, unbiased presentation of the arguments for and against the decision to be made – neither of which happened in 2016.
    First past the post has contributed to the lack of engagement in politics in this country with the reality that only about 1M people actually need to vote in a General Election and the rest of us (including me) don’t need to bother because our vote doesn’t count.
    The European elections (even with its weird PR system) awakened the possibilities in a lot of people’s minds and we need to build on that if we can rather than going more Peoples’ Votes.

  • The idea of abolishing Referendums is attractive but only if we have truly representative democracy i.e. PR of some kind.

  • What we as a party need to do is to work on how we build a democracy in our country, Is our method of an indirectly elected dictator really the best we can do? It is time to face the fact that we have now very little time to design a system which will enable us to all work together to find a way of living on our planet without destroying the ecosystems on which we depend.
    The first challenge then is to use our own policy development processes to find ways of building a movement, ways of using the skills and enthusiasm of each member.
    I see little sign that we are will9ng to accept the challenge.

  • Peter Martin 27th Jul '19 - 8:33am

    “Our system is to elect representatives to the House of Commons to make decisions on our behalf.”

    OK but this does mean that they can “make a decision” to hold a referendum if they choose to. Which is what happened in 2016. They can set any rules on its advisory nature, the need for a supermajority, any required quorum etc.

    Parliament should be allowed to do anything it likes – providing that it is reversible at the next election. In other words providing it doesn’t give away powers which are only lent to it by the people.

  • jayne mansfield 27th Jul '19 - 8:55am

    ‘ Referendums strike at the heart of UK democracy’.

    I couldn’t agree more.

    @ Frankie Esq.,
    You are describing people that you disagree with as ‘sheeple’. Do you really want to put yourself within the category of person who does that?

    The workings of the EU were very much a mystery to many of us who were too busy to do two jobs, that of MP whilst endeavouring to be good in our chosen field of work. We deem ourselves to be without the passion, skills and commitment for the job. It wasn’t much of an issue until the issue of immigration became a major part of the leave argument.

    I am afraid that not all Brexit supporters fit your descriptions, like those of us who on balance voted to remain in the EU, they and we were asked to make a decision that given the complexity of our relationship with the EU we simply were not in a position to make.

    I am really finding it difficult to find evidence that there has been a massive change from leave to remain, and given that there has been three years for remain politicians to persuade the electorate, one questions why that should be. Indeed, the last three years has seen a hardening of attitudes and a polarisation whereby many who would have accepted a Common Market 2 or something similar are now ready and arguing for a ‘No Deal’, a fear that has lost its sting. My own view is that one does not persuade by calling people fools, racists, etc. Some may be, but not all, and in my limited experience of speaking to people about the subject, not the majority.

    If you don’t like the results of the referendum, perhaps you should turn your guns on Cameron who called one in a haste that meant that there was not even a fighting chance of the electorate being presented with a better understanding of what the consequences of remaining or leaving the EU might entail and the information for better decision making.

    Frankie, did you know or think about the consequences for Ireland? I certainly did not. I don’t remember any one mentioning what they might be. My own lack of knowledge on which to make a informed decision, reminds me that others were in the same position, and if I was insulted as other leavers have been insulted, I suppose, closing my mind to further information, becoming more entrenched in my views , or even hardening them, would be a possible reaction.

  • Nonconformistradical 27th Jul '19 - 9:44am

    @Peter Martin and @jayne mansfield
    Peter – Re your posting of 27th Jul ’19 – 8:33am

    It all just emphasises the need for a written constitution – which sets the ground rules.

    @jayne mansfield
    “My own lack of knowledge on which to make a informed decision, reminds me that others were in the same position”

    And if we had a written constitution which set the ground rules then it would be open to anyone who felt people were not being informed adequately to take up the matter with the legal authorities – they might make a decision – just as the Swiss legal system has ordered a fairly recent refendum to be rerun on the grouns that voters were not adequately informed the first time round.

  • jayne mansfield 27th Jul ’19 – 8:55am……………………I am really finding it difficult to find evidence that there has been a massive change from leave to remain, and given that there has been three years for remain politicians to persuade the electorate, one questions why that should be. Indeed, the last three years has seen a hardening of attitudes and a polarisation whereby many who would have accepted a Common Market 2 or something similar are now ready and arguing for a ‘No Deal’, a fear that has lost its sting. My own view is that one does not persuade by calling people fools, racists, etc. Some may be, but not all, and in my limited experience of speaking to people about the subject, not the majority…………………….

    Agreed..However, I have never known this nation so divided and where politics (Brexit) spills over into daily life; LDV is, perhaps, just a microcosm of that.
    I went to a 50th wedding anniversary recently and the wife rang all the guests beforehand with an instruction not to talk about Brexit. What has happened?
    We lived for 15 years in rural France and saw families/neighbours who barely spoke, and were even overtly hostile, because of ‘supposed’ actions during the occupation. I wonder if our society will ever be the same again, especially in Scotland and Ireland.

  • Jayne,
    Yes I was aware of the Irish issue, but it was glossed over by the leavers. The amount of lies they pushed and the simple way they presented their argument could be seen on such websites as
    http://www.voteleavetakecontrol.org/why_vote_leave.html
    If you look at it now, you can see how they lied and frightened people to achieve their goal. A quote attributed to Mark Twain goes “It’s easier to fool people than to convince them that they have been fooled” and we can see that in spades with our resident Brexiteers. No matter what changes and how dark it gets they will proclaim they knew, contort themselves into ever stranger positions all in a desperate attempt to avoid facing the fact they made a bad decsion with few facts but much emotion. The people who voted are stuck in asptic few move between the ever more hostile tribes, the change in the polls is driven by people who have no skin in this increasingly bitter and painful farce, the young and the ones who did not vote are the drivers of the change in the polls. As the old Brexiteers die off, those behind either voted Remain or didn’t vote at all. The Remainers are as stuck in aspeic as the Leavers but the young by a factor of two to one wish to remain. Demographics are against the Brexiteers and so is reality. Brexit will be painful and it will be inflicted on a population unused to pain, twill not end well.

  • Jayne,
    No one likes their foolishness pointing out. Our first reaction is to bluster, tis not true, but proclaiming “I’m not a fool” doesn’t make it true and actually makes you look evenmore clown like. Few if any of us will get through life with out being a fool at least a few times, most of us considerbly more times than that. As to our brave Brexiteers foolish they are being, if they succeed in their foolishness when the bill comes due being called a fool will be the least of their problems. I’d rather point out their stupidity in the hope they will turn away from it but I fear I’m being a fool in even hoping that.

    Perhaps I should change my alias to Jeremiah.

  • @ Ms Mansfield. (please note, no full stop after Ms)
    Could you kindly insert a comma between the name and the Esq. when addressing contributors eg. @Frankie, Esq.
    Really, you are just too naughty. Nanny will get to hear about this.

  • Peter Hirst 27th Jul '19 - 2:48pm

    plenty of excellent points; I especially like the two referendum approach. It will need oversight by an independent organisation either just for referendums or better for a renewed constitutional settlement with the power to sanction the government if it does not fulfil the people’s clear demand. It should all start with a petition with a threshold.

  • jayne mansfield 27th Jul '19 - 5:14pm

    @P.J,
    I note/understand your concerns. Please don’t tell nanny or I will be in a lot of trouble.

    Yours ever so umble,
    Ms…. Jayne Mansfield

  • jayne mansfield 27th Jul '19 - 5:25pm

    @ Paul Walter,
    I dread to think the outcome if that referenda were used to decide the outcome of some of the issues that you mention. Progressive policies have been implemented using the model of representative democracy, and I don’t see why this should not continue.

    When the referendum was foolishly held, I believe and forgive me if I am wrong, that the majority of MPs were in favour of remain and the hard brexiteers were very much in a minority.

  • jayne mansfield 27th Jul '19 - 6:56pm

    @ frankie,
    I do from bitter experience wisdom of the Mark Twain view that ”it is easier to fool people than to convince them that they have been fooled’. But when has life ever been easy? There are people who for whatever reason during their socialisation, don’t play fair. Neither you or I can alter that, the only thing we have control over is our own reactions and responses.

    I really admire you passionate anti- racism, something I share, but the Observer had a depressing article June 2019, ‘Divided, pessimistic, angry: survey reveals the bleak mood of pre-brexit UK’. . Although only one poll of 2,000, it does chime with what I find when speaking to people.

    Like many, I want my country back, but the way that politicians have chosen to polarise rather than reach a consensus between those who hold a different world view makes me depressingly certain that whether we remain or leave the EU, the bitter aftermath will not be healed for many many years, if ever. Both sides if they are the victors may claim to have won the battle, but I am afraid, in my opinion, lost the war. A nation bitterly divided, is not one that I would wish to bequeath to my children and grandchildren.

  • Charles Smith 27th Jul '19 - 7:31pm

    If only the UK had a Proper Written Constitution, there would not be 18 million people who are ignorant of how Parliament functions and how the EU is not a Federal Government handing down legislation. The EU is given a mandate by each of the 28 to set a standard for xyz and the EU has the duty to see it is implemented fully and properly.
    Also, with a Proper Written Constitution, when the UK Supreme Court makes a ruling, the ruling would take effect Immediately! Not as is… handed back to Parliament for them to dither on the subject for years and then making Legislation retrospectively making the entire UK Supreme Court ruling null and void.
    https://worldabcnews.com/boris-johnson-reassures-eu-citizens-living-in-uk-in-case-of-no-deal-brexit-world-news/

  • Peter Martin 27th Jul '19 - 8:24pm

    @ Paul Walter,

    ” We have never had a referendum on it (income tax) ……”

    If we believe in Parliamentary democracy we also have to allow Parliament to call a referendum on whatever they see fit. PR, the AV, maybe. It’s entirely up to them. They can call one on levels, or even the existence, of income tax if they want to. It’s their choice.

    It’s only when they are proposing to give away powers that aren’t easily retrievable that they shouldn’t have such a choice. Here I agree with Nonconformistradical that we do need a constitution to set the allowable rules.

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