At the beginning of Democracy in America, de Tocqueville writes that in studying democracy its “…Faults strike one at first approach, but its qualities are only discovered at length.” The report of the Constitution Unit’s Independent Commission on Referendums, published 11 July, demonstrates de Tocqueville’s point. The virtues of democracy are not always immediately clear, and they are not only found in the big constitutional moments. Democracies are successful because of the interplay between legislation, norms, voters, and representatives over very long periods of time. Successful democracies require the sort of tending to institutions advocated by the Commission. The report itself is an ambitious, clear-eyed, and comprehensive analysis of the use of referendums in the UK. It articulates solid principles and, largely, excellent recommendations. It will not, and makes no attempt to, address the current political and legal challenges arising from the use of referendums. If its recommendations are implemented, however, it will vastly improve the quality of British democracy in the long term. In this post I will summarize some of the key findings of the report and the recommendations that are particularly important. I will focus on one of the few areas where the Commission, in line with previous reports of this nature, has not gone far enough. I will argue that some of the Commission’s most important recommendation require new legislation, not only new norms and amendments to existing legislation.
The report makes a series of ambitious and excellent recommendations. A few that are especially compelling and noteworthy include recommendation 62 which advocates for the creation of a ‘publicly available searchable online repository of campaign advertisements, which should include the advertisement itself and information on when it was posted, which groups were targeted and how much was spent.’ Also compelling are the arguments behind recommendations 8, 11, and 23 which advocate for the use of deliberative processes such as citizens’ assemblies in advance of referendums. This would be a marked change in the constitutional culture of the UK, but the Commission’s arguments for this evolution are thoroughly persuasive.
One of the great achievements of the report is that it draws a distinction between pre and post-legislative referendums. Recommendation 17 argues that ‘It is of the utmost importance for the proposals put to a referendum to be clear and for voters to know what will happen in the event of a vote for change. Hence the Commission considers standalone pre-legislative referendums to be highly problematic.’ On the basis that referendum questions and proposals should be clear as possible, they advocate for a very strong presumption for the use of post-legislative referendums. Where pre-legislative referendums are used, the Commission argues that it is essential to state up front that a second referendum will also be held at the end of a process of constitutional reform. Further, recommendation 19 holds that pre-legislative referendums require white papers to be published in advance of voters casting their ballots.
The strong case for post-legislative referendums is an excellent and surprisingly ambitious recommendation, but the Commission does not go so far as to suggest enshrining this recommendation in legislation. While some recommendations the Commission makes with respect to the specific conduct of referendums require amendments to the Political Parties, Elections and Referendums Act 2000, they suggest that substantive changes to the use referendums should be made through norms rather than legislation. I disagree. I think the overall case the Commission makes is so compelling that additional substantive legislation is necessary to govern what questions are put to a referendum in the UK and how.
The Reticence to Legislate for Referendums
As with previous reports about the use of referendums, such as the House of Lords Constitution Committee’s Reports on Referendums in 2010 and Constitutional Change in 2011, the Commission argues in recommendation 14 against new legislation for referendums beyond matters specifically related to their conduct. Matters relating to their conduct include, for instance, financial reporting and the role of the Electoral Commission. There are two substantive matters that I think require legislation: (i) the content of questions that should be put to a referendum and (ii) the role that a referendum should play in the process of constitutional change, i.e. whether a referendum is pre or post-legislative.
In arguing against substantive legislation for the use of referendums, the Commission makes two familiar arguments. The first is that it is impossible to definitively agree with enough precision about what sort of questions should be put to a referendum and how. The second is that it is impossible to enshrine such matters in legislation anyway because Parliament can always amend them.
Arguments Against Legislating for Referendums
While it is correct to say that Parliament can change its mind and modify legislation relating to referendums, this is not a dispositive argument against passing this or any other legislation. It is also not a dispositive argument against passing laws of a constitutional nature; consider the Fixed Term Parliaments Act 2011, for instance. Further, and since Thoburn v Sunderland City Council, constitutional statutes have a privileged status and can only be explicitly repealed. Most importantly, this process of explicit repeal and amending constitutional legislation is not a shortcoming of the legislative process. It is the objective of having legislation at all. While legislation can never anticipate every eventuality and can always be changed if Parliament has a change of heart, legislation creates a presumption about a state of affairs. If there is an exceptional case that requires changes to existing legislation, then explanation and debate are required as to why that is the case. It is an advantageous and essential feature of legislation in the UK that legislation, even constitutional legislation, can be changed.
Further, this legislation creates the backdrop against which norms around the use of referendums can evolve. Given the detail with which the Commission demonstrates that Governments have tactically used (or not used) referendums since 1973, I am very doubtful that the norms advocated by the Commission will develop without underlying legislation to inform these changes. Referendums are of course required by law in certain cases such as the Northern Ireland Act 1996, The European Union Act 2011, the Localism Act 2011, The Scotland Act 2016, and The Wales Act 2017. There is nothing unprecedented about legislating that referendums must be used, why not also legislate for how and when to use them properly?
The second reason put forward by the Commission against substantively legislating for referendums is that there is no agreement on what a ‘fundamental constitutional issue’ is, either in principle or across parties. This argument was also made by the House of Lords Constitution Committee in the past. Despite the supposed intractability of this problem, the Constitution Committee came up with an impressive list, cited by the Commission too, arguing that ‘fundamental constitutional issues’ include (but are not limited to) actions to: ‘Abolish the monarchy, to leave the European Union, for the nations to secede from the union, to abolish either House of Parliament, to amend the electoral system, to adopt a written constitution or to amend the system of currency.’ I understand the concern about over-legalizing the uses of referendums in a political constitution, and of binding the hands of government unnecessarily. I understand too the worry that every policy question should not be litigated about whether a referendum is necessary. Nevertheless, a legal challenge was already raised arguing that a referendum was required on the Lisbon Treaty when one was promised on the Constitutional Treaty in the case of R (On the Application of Wheeler) v Office of the Prime Minister. As the Commission rightly stresses in its report, referendums are here to stay. I suspect legal challenges will increasingly be made to the necessity for referendums, with or without further underlying legislation.
The merits of democracy are clearest in the long term. They can be seen in the successful transitions of power between groups who vehemently disagree, the compromises such as the Good Friday Agreement in 1998, and in significant constitutional developments such as devolution. All of these successes require amending and tending institutions over the very long term. The Commission argues in its report that ‘We require a culture change in how the role of referendums in UK democracy is conceived.’ This is right and, like all culture change, this shift will take time. This culture change requires large and small evolutions to attitudes and institutions. It does require evolutions in norms, but the roadmap advocated by the Commission is so ambitious that it requires new, substantive underlying legislation too. The Commission should be commended for suggesting a roadmap for the use of referendums which points towards more good days for democracy in the long term; whatever democracy’s short-term faults.
Leah Trueblood is a Lecturer in Law at Hertford College, University of Oxford
(Suggested citation: L. Trueblood, ‘More Good Days for Democracy: The Report of the Independent Commission on Referendums’, U.K. Const. L. Blog (18th Jul. 2018) (available at https://ukconstitutionallaw.org/))