Geraint Talfan Davies outlines the IWA submission to the House of Lords Constitution Committee’s investigation of referendums.
In an age when millions vote for celebrities or would-be celebrities on reality tv shows, direct democracy has an undoubted appeal. That appeal is redoubled when our current system of representative democracy is under such a cloud – the expenses row challenging its probity, and the banking crisis challenging its wisdom and effectiveness. Has the time for extending the use of referendums come?
The IWA thinks not, and has submitted evidence to the House of Lords Constitution Committee arguing that the threshold for calling referendums is already too low, and that it should be applied only to major issues of democratic principle. Its submission also argues that the referendum is not a quick fix either for the perceived problems of local government.
In essence, we have argued that if our system of representative democracy needs reform – and it certainly does (see the Power 2010 campaign) – the answer does not lie in by-passing it.
While acknowledging that there is now no going back on the next referendum on law-making powers – already enshrined in the Government of Wales Act 2006 and underlined by the One Wales agreement between Labour and Plaid Cymru – the IWA argues that the changes proposed in that Act “are not sufficiently significant to merit a second referendum in little more than a decade.”
“The Assembly already has some powers of primary legislation, and the proposed change would serve only to change the way in which those powers are acquired and operated,” says the submission. In fact constitutional lawyers are beginning to doubt whether the distinction between Part 3 and Part 4 powers – ostensibly the basis for the next referendum – are quite as great as first thought, if the exemptions in favour of Westminster are going to be as numerous as at present. Even the All Wales Convention had to raise the prospect of possibly amending the 2006 Act, after or even before a referendum.
It adds: “Ultimately, what constitutes a major change in these terms will always be a matter for political judgment. However, it is likely that such a change will either involve a basic alteration of the structure of the state’s institutions, such as occurred when Britain entered the Common Market in 1973, or the creation of completely new institutions, as obtained when the devolved institutions were proposed in Wales and Scotland in 1997. When set against these innovations it can be seen that changing the internal arrangements of the European Union or the further development of the devolved institutions are of a lesser order of magnitude. Such evolutionary change of existing structures cannot be said to be a point of principle to the same extent as presented by completely new ventures. Evolutionary change is a constant.
The House of Lords Constitution has decided to inquire into the role of the referendum in the UK’s constitutional experience because it argues that while the referendum has been an’ increasingly familiar feature of the UK’s constitutional landscape…the place of the referendum in the UK’s constitutional experience remains unclear.’
The IWA submission has been put together with the expert assistance of Glyn Mathias, who represented Wales on the UK’s Electoral Commission from 2001 to 2008.
The issue is particularly relevant to Wales, where we have had rather more experience of referendums than other parts of the UK: not only the 1975 referendum on entry to the Common Market, and the devolution referendums of 1979 and 1997, but also the seven-yearly polls on Sunday closing of licensed premises and a referendum in Ceredigion in 2004 on the issue of whether or not to have a directly elected mayor for the county.
We also face the prospect of a further referendum on the powers of the Assembly later this year, with no clear indication that this will provide any finality. In recent weeks, the Home Secretary, Jack Straw, has been arguing that the creation of a Welsh legal jurisdiction, that some regard as the inevitable consequence of law-making powers, should be subject to yet another referendum. This raises the prospect of a succession of referendums on every technical development of the National Assembly as an institution – something guaranteed to produce endless political distraction.
In the words of the submission, ‘it defies belief that such a technical issue could be construed as being of sufficient constitutional importance to merit a referendum.’
We make the case that while the theoretical rationale for referendums is that the change is so profound that it requires the direction sanction of the electorate, in practice it has usually had much more to do with political calculation. Referendums on Europe and devolution have been seen by many as escape hatches from internal party tensions. Even the Ceredigion poll on an elected mayor had much more to do with discontent over the local authority’s housing plan than with the structure of local government.
In relation to the promised referendum on law-making powers, it is going to be immensely difficult – as the All Wales Convention recognised – to formulate a question that accurately conveys the narrow issue of the way in which the Assembly acquires and operates additional powers. The formulation of the question could heavily influence the outcome.
We have suggested to the Lords Committee that the Political Parties, Elections and Referendums Act 2000 (PPERA) be amended to include a definition of the kind of constitutional issues that would require a referendum. We propose that any referendums on constitutional change should be restricted to “truly major issues of democratic principle – change that alters fundamentally the nature of the state”.
We also point up the anomaly that the PPERA rules for referendums apply only to referendums authorised in statutes in Westminster. This means that any Scottish referendum on independence and any Welsh referendum on law making powers might escape the PPERA rules. Any Scottish referendum would be based on Scottish legislation, while the rules for a Welsh referendum could be made by a government minister commanding a relevant majority in the Assembly. We suggest that referendums on constitutional matters should be subject to the same rules right across the UK.
Since the promise of further decentralisation of power will be dangled before the electorate by most parties at the next General Election, expect to hear much more about the possibility of local referendums as an extension of democracy.
We cast some doubt on the wisdom of such local polls, except in circumstances where an issue is so divisive that locally elected representatives cannot resolve it. We do not advocate a system whereby citizens can trigger referendums themselves, as this would further undermine the role of democratically elected councils. Instead, we argue that we should seek to improve the effectiveness of representative democracy by restoring powers to councils and considering more seriously proposals for local income tax or the introduction of proportional representation. Referendums should not be and would not be a quick fix.
