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Nosemonkey's EUtopia

In search of a European identity

The constitutional position of referendums in the UK

Ahead of today’s Commons vote on a possible EU referendum, some basic points that many are overlooking (originally posted as a comment over at Jon Worth’s place):

Referenda have a decidedly unclear position within the UK constitution. The people are not and never have been sovereign in the UK – sovereignty rests with Parliament (technically the Crown in Parliament), and anything that threatens parliamentary sovereignty could easily be challenged as unconstitutional. Direct democracy bypasses Parliament, therefore it easily falls into this category.

It always surprises me that anti-EU types don’t realise this, considering one of their key arguments against the EU is that it is unconstitutional for anyone/anything to be able to overrule Parliament (usually they quote the 1689 Bill of Rights – this has little/no actual legal weight, but the theory is still there).

This constitutional angle is a massively important point – advocating wider use of referenda would, if taken up, be one of the biggest changes to the UK constitution in 300+ years. It could potentially undermine the very foundations of how our political system works in ways far more widespread and unpredictable than anything we’ve seen via membership of the EEC/EU. There are no rules on what referenda should be used for, no rules on what they *shouldn’t* be used for, no rules on how they can be triggered, no rules on how they can be overruled.

Short-version – it’s dangerous to introduce any significant constitutional change without thinking through the consequences. In the rush to appease the politically vocal, we could do far, far more damage than any referendum-advocates realise.

See also: The case against referendums by Conservative peer and constitutional expert Lord Norton of Louth, whose key objections are that referendums are misleading, unbalanced and dangerous.

And also: Jon Worth making many of the same points as I do above – before we hold any more referenda, we need to work out what role they should have in the UK political system.

8 Comments

  1. “anything that threatens parliamentary sovereignty could easily be challenged as unconstitutional. Direct democracy bypasses Parliament, therefore it easily falls into this category.”

    I see no legal basis for this statement. If an Act authorises a referendum, it is legal.

  2. Yes, of course if Parliament accepts the referendum result and turns it into an Act. But the point is what happens if referenda become regular occurances, and if the results are expected to be honoured by Parliament? That would imply that parliamentary sovereignty has been superceded by popular sovereignty, which would be an immense change to the constitution.

    Of course, as the constitution in part works on precedent, this wouldn’t *necessarily* be unconstitutional, as it would be arguable that a new precedent had been set and all is hunky dory. But if that precedent *is* set, then one of the cornerstones of the constitution will have been removed, which would have pretty much unknowable implications.

    • You’re missing the point here. The Act of Parliament usually precedes the referendum – that is certainly what is envisioned in this case.

      In terms of constitutional change, any general authority to hold referenda not tied to specific outcomes pre-ordained in an Act, is unlikely to amount to very much, for the very simple reason that anything that Parliament does is not justiciable. There would have to be (at the very least) decades of slavish parliamentary adherence to referendum results before the courts started re-considering their conception of sovereignty in our state.

      In general, it’s very rarely worth worrying about the unwritten bits of our constitution, because any government can disregard them, and I doubt with much scruple.

  3. The failed Dutch ratification of the European “constitution” was what did it for me – no more referenda. They’re too strongly tied to fluctuating public opinion, I’d rather have a government / civil service dealing with complex political issues. I remember the complaints by some opponents of the Lisbon treaty after it passed, arguing that it was ‘unreadable’ and if someone please could come up with something that makes more sense (i.e. reintroduce concepts such as ‘foreign minister’ and ‘flag’ instead of High representative of the Union for Foreign Affairs and Security Policy and ‘symbol of the Eu, not to mention having one treaty rather than about 15).

    On the issue of the UK’s EU membership, I hardly believe that David Cameron wants to go down in history as the prime minister who pulled the UK out of Europe. Sure, it might do his reputation good with the con’s backbenchers, but what about business on which the nation relies? I cannot imagine bankers being all too please, either.

    Switzerland has been raised as an example for UK / EU relationships, but Switzerland all too often faces ‘take it or leave it’ packages, and if the UK has one lesson to learn from history it is one taught by the old French general, the Gaulle: Being part of the EU might be frustrating, but there is nothing worse than being left out, being unable to influence the decision making process.

  4. The AV referendum may well have been good for at least one thing in this sense, and hopefully opened people’s eyes as to what a blunt instrument a referendum is; devoid of basis in fact and analysis, and solely weighted on a minorities ability to be swayed one way or another by facts and/or misinformation and lies.

    You’re quite right that to simply allow referendums that are made in this way is dangerous. No quorum (which I don’t have a problem with in general, people that are engaged are the ones that matter where direct democracy occurs, but is clearly a problem of it’s own when talking about binding referenda), decisions that can result in uncosted and untested outcomes that are seen to be unavoidable but to carry through by governments…it’s just not where we should be heading in any way, shape or form.

    This is the main reason I oppose the EU referendum idea, I don’t mind the debate but I know also that there will not be a full and accurate debate, nor that the answer will be representative of the people (does not taking part in the referendum give credence to the Yes or the No arguments, for example…on which side of the balance does “Don’t Care” help and why?).

    If we’re to leave the EU, or dive in further, it has to be based on full investigation with appropriate consultation of the public, not chaotic and incomplete public votes.

  5. The AV referendum was good full stop. It exposed the empty self interest of the Lib Dems to examination, and resulted, as a consequence in a resounding ‘No’. There can be no discussion of voting reform for years to come.
    En route the myth of the progressive majority was destroyed and you might have hoped the arrogance of the Lib Dems might have been dented. Not as far as I can see.It was all because the stupid people were not up to voting on their lovely idea properly.
    The special place of laws that actually bind future Parliaments and remove power from voters is pretty obvious but the real problem with the EU is that the political class is at odds with the voters.The unwritten parts of the constitution are not being ignored , its development has been one of drawing the sting from change by adapting.
    It was dangerous to let powerful new classes stay disenfranchised and so the franchise was developed through the 19th century.It is equally harmful for representatives to block a consistent majority view by passing powers away form the voters with no legitimacy having ,at any point , being acquired and by conspiring openly against the electorate to thwart their views.

    based on full investigation with appropriate consultation of the public, not chaotic and incomplete public votes.

    Sinister…..I will use that on the local web site. Thanks

  6. I don’t have a problem with referenda.
    Actually, I find them very useful for engaging the citizens with public affairs.
    At the very least, beyond the cliches pub banters …

    My real problems are with the practical details :

    a) when do we organize a referendum ?
    do we need a public threshold (like a 100k internet signatures) to organize it, or do we leave it to our elected representatives to decide which populist questions should occupy our minds for the time being ?

    b) what constitutes a proper topic to be publically discussed ?
    “should we abolish the monarchy ?” (or is it too treasonous to air)
    “should the next monarch not be ruled by the salic law ?”
    “should potatoes be green and round, or flat and red ?”
    “should we send a UK pilot to the moon ?”
    “should we leave the EU ?”
    “should we give out International Aid development ?”
    “should MPs have their salary be a flat 30k ?”
    ….

    c) What legitimacy to give to referenda ?
    Should they be considered not much more than opinion polls or be binding on legislatures ?

    Best regards,

  7. Also, it’s important for any civic-minded referenda to have a press that reports on a factual basis.

    I’m not just talking about tabloids, but also about news (printed or televised) that advertised themselves as “fair and balanced”, yet show a clear political bias. Including in the reporting, the wording and the editorial choices.
    If the press is not there to inform, but to instruct or disinform, where can voters turn to for reliable information (and plz don’t say the web, no offence to Nosemonkey).

    pundits are fine. so are politically motivated columnists.
    but when press outlets can hardly be distinguished from propagandist broadsheets, I get worried about how referenda can be used for.

    on this point, Sky News has steadily tilted over the years towards a Conservative bias, but hasn’t its Eurosceptic (phobic ?) bias taken a superboost lately ?
    when watching the press review, the choices for “independent” comments are between a hard-line Tory (David Nuttall) and a mild Tory (only a regular pundit to Tory conferences), or a left-wing Eurosceptic (ie : a trade unionist who wants social protectionism) and a right-wing Eurosceptic populist (ie: Nigel Farage).
    And all the while, they spout uninterrupted their garbage :
    “70% of UK laws are designed in Brussels”
    “EU responsible for Human Rights Acts”
    “we can have access to the single market without respecting any of the Acquis Communautaire”
    “EU riddled with corruption and gravy train but our MPs free of expense problems or lobbying conflict of interests”
    “EU costs £40 millions a day to the UK, net”
    “According to Taxpayer Alliance, EU regulations costs £150 billions to the UK economy each year”
    ….

    Best regards,