The power to make
law, and especially to reject it, is a measure of sovereignty. If the people have the power to demand that
specific laws be made, or if they can refuse to accept proposals for new laws,
this is known as direct democracy – the only true form of democracy. The most
obvious and common mechanism for expressing such true democracy is the
Here we explore three applications of referendums. The first is in relation to
the framing of new laws, where electorates propose and then vote for specific
laws, the outcomes binding on the legislatures. Switzerland and California are
notable examples and the Californian system looks particularly attractive. In
its so-called “ballot proposition”, a public petition under the “initiative
system” can end up with a referendum on a new law.
compelling legislatures to frame laws in response to popular demand is
problematical. It can create inconsistencies and anomalies within the legal
code, and contravene treaties. To an extent, these problems can be avoided by
requiring proposals to be compatible with the constitution. A greater handicap,
though, is that the process is prone to abuse by well-funded or dedicated
single-issue groups, and by the popular press or television. This exposes
law-making to rule of the mob. Giving the public direct access to the
law-making process can end up in petty tyranny.
As, with official bodies, therefore, we need checks and balances to
avoid the system becoming oppressive.
The point here is
that there is rarely a problem in getting laws made under the current
system. Largely, the public is able to
raise a hue and cry sufficient to force the legislature into action when there
is a perceived need for a new law, but the outcome is often bad or ill-conceived
law. Contemporary examples include gun laws brought in after Dunblane and
dangerous dog legislation initiated after children had been mauled.
To enable the
public voice to be heard, we see no reason why a “take note” referendum should
not play a part in raising issues, calling for legislatures to consider new
laws. A formal requirement for referendums could even be included in a written
constitution. Nevertheless, we believe that such referendums should not be
application for referendums we considered was one which addressed a crucial deficiency in our system: the absence of
restraint on legislative incontinence. Official systems make too many laws so,
rather than making it easier to produce new laws, we need to make it harder. We
also need a mechanism to get rid of laws that we do not want.
Support for these ideas comes from Peter Kellner, president of the YouGov polling company. He
refers to the great jurist A V Dicey who in 1890
advocated them as a “people’s veto” to block unpopular legislation. Kellner
would revive Dicey’s idea, making it possible for the electorate - local or
national depending on the issue - to say to their elected politicians: “this
time you have gone too far. What you propose is utterly unacceptable”. It would
apply to new laws or regulations, after they had been approved but before they
had been enacted.
enthusiasm for them, Kellner felt that political life “would surely seize up if
referendums became as common as citizen initiatives in California”. They could
act as a deterrent against the abuse of power by, say, a government with a
large majority but, on balance, they would be rare events.
This lack of
involvement brings in the second application for referendums. If the people are
sovereign, they must be directly involved in law-making. Every law must have the
consent of the people and no law should come into force without that consent.
Furthermore, this should not be a rare event. It should apply to every
law. Nevertheless, it
makes sense to limit the frequency of referendums: we could hardly have one for
every new law. Instead, we could borrow from Statutory Instrument (SI) approval
procedures. These are approved by Parliament through what are known as
“positive” or “affirmative” and “negative” resolutions.
The bulk of such legislation is subject to “negative” resolution. It is “laid”
before Parliament for forty sitting days and if at the end of the period, there
is no motion to annul (known as a prayer), the law is automatically deemed
popular consent, there would be an opportunity for the public to lodge
objections to any Act of Parliament, before Royal Assent. Similarly, once an SI
had been “laid”, there would be a period during which objections could be
lodged. If a threshold level of signatures was reached within a requisite time,
there would be a referendum. Otherwise, the law would automatically be deemed
approved. A “positive”
resolution would be required for constitutional measures, or any law which had
the effect of changing the constitution. On these rare occasions, new law would
trigger a referendum and a “no” vote would stop it taking effect.
existing legislation, whether Acts of Parliament or SIs. One idea suggested at
Harrogate was that we should adopt the “sunset clause” concept, where laws
expire after a defined period unless renewed. But we felt that, if a law is
needed (and why else, should it be passed?) it should remain on the statute
book. Allocating an arbitrary expiry date, requiring active legislative input
to keep a law going, merely adds unnecessary complications and increases
should be a specific process. A formal complaint could be raised against and
law and, within a prescribed time, should that attract a set number of
signatures, a referendum would be held. A majority vote against the law would
secure its removal from the statute book.
What applies to
national level should, of course, apply locally. Laws made by local sovereign
legislatures should have their laws subject to either positive or negative
referendum procedures, and there should be provision for removing existing
laws. In all cases, referendums would be triggered by smaller numbers of signatures,
possibly based on a proportion of the electorate. A figure of ten percent has
Then, what applies
to laws should also apply to the ratification of treaties. As experience with
EU treaties demonstrates, international treaties can be back doors into the
statute book, by-passing democratic systems. They become an indirect way of
making rules which bind us.
nevertheless, are minor affairs, with little but administrative consequences.
Others, such as the Lisbon Treaty, have major constitutional effects. Thus, any
proposed EU treaty or treaty change which would transfer powers from the UK to
the EU is now subject to a mandatory referendum via the European Union Act
2011.All other treaties
subject to ratification are laid before Parliament for 21 sitting days in
accordance with the Ponsonby Rule, introduced in 1924.
During that period, a formal demand may be made for a debate and, in certain
circumstances, a vote might be held. Absence of a motion to refuse ratification
is taken as approval, making this very similar to the “negative” resolution
procedure used for SIs.
The most logical
way to secure direct democratic approval for such treaties is to adopt the same
procedures used for approving new laws. Firstly, there has to be a requirement
that no treaty (of any nature) can take effect until it has received popular
approval. Then, those such as EU
agreements which alter or add to the constitution would require positive
assent, by way of a referendum, as mandated by the European Union Act.For the rest,
negative resolutions might apply. Time would be allowed to lodge a sufficient
number of objections and if the requisite number was reached, a referendum
would be held. If the threshold for objection is set relatively high, there
should be few spurious or unnecessary calls to reject minor treaties.
treaties, there should be provision for popular abrogation, although there are
complications. Under international law, once a treaty is agreed and ratified,
it remains in force unless there is specific provision for expiry. There is no
routine provision for ending a treaty by public demand.
Such a system has
to change. An ancient privilege, the Crown prerogative, cannot be used to bind
and obligate a free people. That it can be so used is evidence that we are not
a free people. Agreements with the United Kingdom should only be valid if her
peoples are party to them. Nor is it
sufficient that Parliament alone should have the power to decide. Obligations
and expense must be borne by the people as a whole. It is, therefore, the
people who should have the last word.
Finally, this brings
us to the third and last element which would require public approval,
permitting challenge and the possibility of rejection. This category would include certain types of
decision made by government or official bodies, - by elected and appointed officials,
including ministers and judges.
could not be a referendum for every one (or even a tiny number) of the hundreds
of thousands of decisions made each day, so the type of decision amenable to
challenge would have to be restricted. Mainly, the “negative” resolution
procedure would have to apply, where decisions are deemed to have been approved
With certain types
of formal decisions, such as planning
approvals – and even, maybe sentences handed down by judges for certain types
of criminal case - one could see referendums triggered by a set number of
objections, with a majority vote enabling a decision to be rejected. In effect, this would be a form of popular