affiliated to the International Association of Constitutional Law
Resolving any political question requires compromise. This is as true for constitutional questions as it is for questions of policy. This can be seen now in the European Union’s reminders to the United Kingdom that access to the single market is not ‘à la carte.’ While some have argued that the latest referendum outcome is illegitimate, and others that it is legitimate, it is important to ask another question too: ‘Was this an instance of a referendum working well?’ I think the answer to this question is no. The answer is no because all political choices require compromise, and referendums (on their own) cannot facilitate compromises to political choices. The referendum on European Union membership was used to initiate constitutional change, but the better view is that referendums should ratify constitutional changes and compromises.
Ratification and Initiation
The phrasing of the 2016 United Kingdom referendum question invites an answer that is unequivocal: ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’ Contrast the 2016 referendum question in the United Kingdom with that of the referendum in Quebec in 1995: ‘Do you agree that Quebec should become sovereign after having made a formal offer to Canada for a new economic and political partnership within the scope of the bill respecting the future of Quebec and of the agreement signed on June 12, 1995?’ While this question was notoriously opaque, and I do not want to endorse it in any way, it nevertheless suggests that referendums may mark the beginning or end of a process of constitutional renegotiation, or fall somewhere in between. Indeed, the ambiguities within the Quebec referendum question itself demonstrate the importance of understanding precisely what role referendums are meant to play in ongoing processes of constitutional change.
Contrast also the 2016 European Union membership referendum with the 2014 Scottish independence referendum. While the wording of the question was similarly unequivocal, ‘Do you agree that Scotland should be an independent country?’ the Scottish Government produced a white paper entitled ‘Scotland’s Future: Your Guide to an Independent Scotland’ that situated the referendum more clearly in a process of constitutional change. Voters had a clearer sense of what the terms of constitutional change were. A white paper might arguably be seen in a similar manner to a manifesto in a general election. There cannot be an expectation that all of the provisions will be executed in exactly the way the document outlines, but at least people have a general sense of what they are voting for. There was no document of similar status in the United Kingdom’s referendum on its membership of the European union, and this created four sets of problems:
Constitutional Conventions and Assemblies
It is also important to note that referendums are not the only way to consult the people on questions of constitutional change. The role of constitutional conventions and assemblies are important and underexplored in the latest debate. These sorts of processes afford many opportunities for both specialists and lay people to be engaged. Some notable examples of such processes include the British Columbia Citizens Assembly on Electoral Reform, the Australian Constitutional Convention, the Civic Forum for Northern Ireland, and the Convention for a Democratic South Africa. These sorts of processes often give members of the public the time and expertise to try to come to compromises on constitutional issues. It is clear that the people need to be consulted on constitutional questions of this nature, but referendums –especially when used in isolation– are not the only way to give the people a say in processes of constitutional change. The House of Lords Constitution Committee’s Report Referendums in the United Kingdom suggests that constitutional referendums should not be used as ad hoc devices for constitutional change, particularly in isolation from other processes of public consultation and engagement. Their suggestion should be taken seriously going forward.
While a relatively new phenomenon in the United Kingdom, constitutional referendums clearly play a central role in constitutional change. It is unclear, however, exactly what that role is. While uncertainty can never be totally eliminated from referendum outcomes, using referendums to ratify rather than initiate constitutional change would go a long way to creating constitutional and political stability. Given that more referendums appear to be on the horizon, it is also important to remember that referendums should not be used in isolation. Constitutional conventions, assemblies, and other processes can augment them. There is a danger that constitutional theorists will either argue for or against the use of referendums moving forward. I think the better view is to focus on (i) exactly what their role should be and (ii) how to make them work better.
Leah Trueblood is a DPhil Student in Law at the University of Oxford.
(Suggested citation: L. Trueblood, ‘Referendums, Compromise, and Ratification’, U.K. Const.L.Blog (5th Jul 2016) (available at https://ukconstitutionallaw.org/))