Stephen Lambert and Mark McNally examine the arguments
The referendum, as we saw over staying or leaving the EU last June, is a device by which the people are directly asked to give a YES/NO decision to a specific policy. It’s a device descending from the concept of direct or classical democracy, influential in 18th century Europe.
But the concept and practice of referenda in our democracy remains problematic. The Brexit result is expected to have profound consequences for both the UK and the North East. The outcome will provide a significant economic challenge to our region: Not only from the loss of the ‘EU Single Market’, but also from the prospect of a Scottish Independence Referendum.
This could lead to fierce competition from Scottish business able to take advantage of tax incentives and grants not available to North East companies. The closeness of our region to such an economically advantaged set circumstances begs the question as to whether referenda are fair or democratic in making far-reaching decisions? Are they merely a blunt instrument that panders to narrow sectional interests which in turn undermines the democratic process.
Until the turn of the 21st century referenda in our own country were seen as a popular continental device not suited to our system of representative democracy based on the sovereignty of Parliament. Yet contrary to popular belief referenda are not new in Britain. The main precedent was the first national referendum to stay in or get out of the EEC in June 1975. The reasons for the referendum were that the membership of the Common Market was of great constitutional significance, affecting British sovereignty, but arguably it was an instrument for preserving the unity of the Labour Government.
A constitutional crisis was avoided because the verdict was what the Government recommended. Had the verdict gone against the government it would have been obliged by precedent to resign and call a general election.
Since 1975 there have been a number of referenda on a range of issues including: Devolution for Scotland and Wales in 1997; the Northern Ireland – Good Friday Agreement, 1998; 30 local referenda on to see whether people wanted ‘Elected Mayors’ and last year’s EU Referendum in which over 17m backed Brexit.
Another major problem is that under a sovereign parliament the referendum could be what is termed a ‘’consultative referendum’’. Since it would not have been legally binding on the government it was as one critic put it a ‘’constitutional nonsense’’. That’s why the Judge’s decision to refer the matter of the outcome of the EU referendum to Parliament was the right one.
There remains a good case for the use of referenda in our liberal democracy. One, it answers a particular question which a general election can’t. Single issues it’s suggested rarely stand out in an election campaign. Two, the answer of a referendum is precise and can advise and mandate a government on a controversial issue. Three, it’s a form of direct democracy by encouraging political participation, educating voters and raising awareness of issues. Turn-out in the June 2016 Referendum was 72% – higher than the 2015 general election at 66%
Four, it legitimises constitutional change – for example asking people if they wanted a Scottish Parliament or Welsh Assembly. Finally it can united a divided political party such as Labour in the seventies and the Conservatives in 2016.
On the other-hand some scholars such as the veteran Parliamentarian Ken Clarke are against the use of referenda in British Government. For Clarke the referendum is not a ‘’normal’’ feature of UK representative democracy. It’s not legally binding. ’’Referendums have never settled anything’’ argues Clarke.
It’s more suited to Europe and as Clem Attlee PM pointed out in 1946 ‘’a device alien to our traditions’’. For Attlee referenda have been easy devices for dictators to exploit and have ‘’only to often been the instruments of Nazism and fascism’’.
For others, the referendum undermines Parliamentary sovereignty and reduces the roles of democratically elected MPs. True, they may result in more participatory democracy, but it could lead to weak or indecisive government ready to pander to popular will rather than provide a strong lead on thorny issues like the death penalty.
Some sections of the electorate are emotional, ill-informed and prejudicial: to some extent this came out in the debate about Britain’s continued membership of Europe. The late Roy Jenkins, Home Secretary in 1967, doubted if any progressive legislation would have been passed this way, especially in the contentious policy areas of abortion, race and sex equality and decriminalising homosexuality.
Other critics point out that there’s the danger of governments using ‘’leading questions’ when designing referendums raising the issue of bias. For the French President De Gaulle writing in 1948 referenda are not genuinely popular devices. Governments pose a question, thus fixing the answer. A No answer could be meaningless. For De Gaulle: ‘’No can never be a positive contribution’.’ Some issues are too complex for a simple Yes/No response. .Some political scientists believe that Governments only have them when they think they will win. Certainly David Cameron was confident of a Yes vote the June 23 EU referendum.
Whatever the merits and flaws some writers do acknowledge that referenda can be a useful addition to democratic government with sufficient safeguards and if used infrequently. The precedent has now been set in UK governance. But with the SNP government threatening to break up the UK with a second Scottish Independence Referendum, perhaps this instrument of direct democracy is past its sell by date.