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( 155 .)


observes, ˜could bene¬cially be applied far more widely in modern societies
than it presently is™ (Democracy (1987), p 105).

(a) Referendums
It is rare for a general election to be fought on a single main issue, and the result
of an election indicates, at most, an undi¬erentiated approval of a whole range
of policies. Only a referendum makes it possible for the electorate to give a clear
judgement on a single issue of immediate relevance.
Our constitution embodies the principle of representative, not direct,
democracy, and the referendum has not in the past been a normal feature of the
system, although various statutes provided for local referendums on the pro-
motion of private bills, the Sunday opening of cinemas, the establishment of
public libraries and ˜local option™ for the licensing of public houses. The Local
Government Act 2000 now requires the holding of binding local referendums
on the adoption of certain forms of executive governance, including a directly
elected mayor (see chapter 4).
National referendums have in the past been urged for such contentious issues
as Irish home rule (Dicey was among those who argued for a referendum on
home rule at the turn of the last century) and food taxes, on which Stanley
Baldwin proposed a referendum in 1930. In 1911 the Conservative Opposition
made an unsuccessful attempt to amend the Parliament Bill so as to provide for
referendums on bills of constitutional importance (eg those a¬ecting the
Crown or the franchise or the powers of either House of Parliament). It was not
until 1972 that Parliament approved the use of a referendum other than
for a local government matter. The Northern Ireland (Border Poll) Act 1972
provided for a referendum in which the electors of Northern Ireland were to
vote on the question whether the province should remain part of the United
Kingdom or be joined with the Republic of Ireland.
The United Kingdom joined the European Communities in 1972 without the
terms of entry being submitted to the people for approval. In its manifesto for
the February 1974 general election the Labour Party undertook that it would
renegotiate the terms of membership, and that if the negotiations were success-
ful, ˜the people should have the right to decide the issue through a General
Election or a Consultative Referendum™. This commitment was rea¬rmed in
the Labour Party™s manifesto of October 1974. After the election the Labour
Cabinet decided that the question of membership, which divided both the
Government and the party, should be resolved in a referendum rather than in
another general election. In March 1975 the renegotiations were concluded and
the Government announced that it would recommend the British people to vote
534 British Government and the Constitution

in favour of staying in the Community: ˜The Government will accept their
verdict™ (Report on Renegotiation, Cmnd 6003, para 153). A Government White
Paper on the Referendum (Cmnd 5925/1975) was debated in the House of
Commons on 11 March 1975.

House of Commons, HC Deb vol 888, cols 291“3, 11 March 1975

Mr Edward Short (Lord President of the Council and Leader of the House of Commons): . . .
Whatever view we may take on Britain™s membership of the European Community, I hope
that we would all agree that this is much the most important issue that has faced this country
for many years. Whether we decide to stay in or to come out, the effects on our economy,
on our political and parliamentary systems, on our influence in the world and, indeed,
perhaps eventually on our whole way of life will be profound not just for ourselves, but for
future generations.
How should a decision of this importance have been taken? The right hon. Member for
Sidcup (Mr Heath) had it right when he said that such a decision should be taken only with
the full-hearted consent of Parliament and the British people. In our system we accept deci-
sions with which we do not agree, but only if we are satisfied that they have been arrived
at fairly and democratically.

Mr Patrick Cormack (Staffordshire, South-West): In Parliament.

Mr Short: Unfortunately, the last Government™s handling of the European issue did not match
their previous promises. They had no mandate to take us in, merely to negotiate “ ˜nothing
more, nothing less™. The result is that the consent of the British people has not, in fact, been
secured. The issue continues to divide the country. The decision to go in has not yet been
That is the essence of the case for having a referendum. Only by means of a referendum
can we find out whether the British people do or do not consent to our continued member-
ship. A General Election could not give us this answer, because this is an issue within the
parties, not between them. . . .
I understand and respect the view of those devoted to this House and to the sovereignty
of Parliament who argue that a referendum is alien to the principles and practices of parlia-
mentary democracy. I respect their view, but I do not agree with it. I will tell the House why.
This referendum is wholly consistent with parliamentary sovereignty. The Government will
be bound by its result, but Parliament, of course, cannot be bound by it. Although one would
not expect hon. Members to go against the wishes of the people, they will remain free to
do so.
One of the characteristics of this Parliament is that it can never divest itself of its sover-
eignty. The referendum itself cannot be held without parliamentary approval of the neces-
sary legislation. Nor, if the decision is to come out of the Community, could that decision be
made effective without further legislation. I do not, therefore, accept that the sovereignty of
Parliament is affected in any way by the referendum. Some argue that decisions on national
issues should be taken wholly and exclusively by Members of the two Houses of Parliament.
In general, we would all agree with that. But Governments are elected on their whole
535 Parties, groups and the people

programme and it would be neither appropriate nor practicable to have referenda on
individual parts of the package. Moreover, if Parliament™s decisions are found to be wrong,
a subsequent Parliament can reverse them, as we have been doing since February last year.
But that surely does not apply to this matter.
Our membership of the European Community is a unique issue because it profoundly
affects our relationships with other countries as well as our whole standing and status in the
world. It is unique because in time it could become almost irreversible, not for legal reasons
but because, as we are already finding, the longer we stay in the harder it will be to come
out, and the harder it will be to find any adequate design for living outside.

Legislation was necessary to provide for the ¬rst nationwide referendum to
be held in the United Kingdom. In the referendum held in accordance with the
Referendum Act 1975, the electorate voted on 5 June 1975 on the question, ˜Do
you think that the United Kingdom should stay in the European Community
(the Common Market)?™ (This formulation of the question seemed to some
observers to ˜tilt the balance in favour of the status quo™: see Kellas in K Banting
and R Simeon (eds), The Politics of Constitutional Change in Industrial Nations
(1985), p 151.) 67.2 per cent of those voting (in a turnout of 65 per cent of the
electorate) voted for staying in the Community. The referendum settled
the controversy about membership for a time, but developments in the
European Union were again to stimulate demands for a referendum in the
1990s. A backbench MP, fearful of the implications of the Maastricht Treaty,
introduced a Referendum Bill in February 1992 to require a national referen-
dum as a precondition for the rati¬cation of treaties which would have the e¬ect
of diminishing the powers of Parliament: ˜no such profound constitutional
change should take place without reference to the people™ (Mr Richard
Shepherd, HC Deb vol 204, col 581, 21 February 1992; the bill made no
headway). Amendments were moved by backbenchers to the European
Communities (Amendment) Bill 1993 in both Houses, to provide for a
referendum on rati¬cation of the Maastricht Treaty: although lost, they were
supported by dissidents in all three main parties. It was argued that since
all the main parties were in favour of the Treaty, opponents had had no
e¬ective opportunity of putting their case. Subsequently there were demands
(and another doomed Referendum Bill) for a referendum on developments
in the European Union towards monetary union and a single currency, and a
Referendum Party was launched in 1994 with the single object of securing a ref-
erendum on ˜the future structure of Europe™. (The party attracted a modicum
of support in the 1997 general election but won no seats.) See further below as
to prospective referendums on European issues.
Arguments for the 1975 referendum had relied on the ˜unique signi¬cance™
of the issue of Community membership. But in 1978 a minority Labour
Government was constrained by backbench pressure to provide in bills for dev-
olution to elected assemblies in Scotland and Wales that referendums should
536 British Government and the Constitution

be held in the two countries on the question whether devolution should be
implemented. During the passage of the Scotland Bill a Labour backbencher™s
amendment to the provision for a referendum introduced a threshold require-
ment of approval by 40 per cent of the Scottish electorate. This was carried
against the Government, and section 85(2) of the Scotland Act 1978 accordingly

If it appears to the Secretary of State that less than 40 per cent of the persons entitled to
vote in the referendum have voted ˜Yes™ in reply to the question posed in the Appendix
to Schedule 17 to this Act [˜Do you want the provisions of the Scotland Act 1978 to be put
into effect?™] or that the majority of the answers given in the referendum have been ˜No™ he
shall lay before Parliament the draft of an Order in Council for the repeal of this Act.

An equivalent amendment was made to the Wales Bill. After the bills had
received the Royal Assent they were duly submitted to referendums in Scotland
and Wales. In Scotland 52 per cent of those who voted were in favour of
devolution and the Scotland Act, but they constituted only 33 per cent of
the Scottish electorate. In Wales a mere 20 per cent of those who voted, or 12 per
cent of the Welsh electorate, voted ˜Yes™. Since the 40 per cent threshold had
not been reached in either country, Orders were laid before Parliament (by the
new Conservative Government) for the repeal of the two Acts and were duly
The Labour Government elected in 1997, in resuming the devolution project,
said that it would proceed with legislation to establish a Scottish Parliament and
a Welsh Assembly only with the support of the relevant electorates. (See HC
Deb vol 294, col 720, 21 May 1997; HL Deb vol 580, col 1113, 17 June 1997.)
Provision for referendums in the two countries was made by the Referendums
(Scotland and Wales) Act 1997. In the Scottish referendum voters were to
be asked to choose between the two propositions: ˜I agree that there should be
a Scottish Parliament™ and ˜I do not agree that there should be a Scottish
Parliament™. A second ballot paper o¬ered a further choice between alternatives:
˜I agree that a Scottish Parliament should have tax-varying powers™ and ˜I do not
agree that a Scottish Parliament should have tax-varying powers™. In the Welsh
referendum there was only one pair of alternatives, voters being asked whether
they agreed or disagreed ˜that there should be a Welsh Assembly™. In the subse-
quent referendums, in Scotland on 11 September 1997 and in Wales a week later,
the a¬rmative proposition was carried in each case. (See chapter 4 and see
further Munro [1997] PL 579.)
The Government™s proposals for the establishment of a Greater London
Authority with an elected assembly and mayor were submitted on 7 May 1998
to an electorate consisting of local government electors in London boroughs
and City of London wards. In accordance with the Greater London Authority
(Referendum) Act 1998 a single question was presented to the voters: ˜Are you
in favour of the Government™s proposals for a Greater London Authority, made
537 Parties, groups and the people

up of an elected mayor and a separately elected assembly?™ In a turnout of
34 per cent a majority of 72 per cent voted ˜Yes™.
A referendum was once again held in Northern Ireland, in accordance with the
Northern Ireland Negotiations (Referendum) Order 1998, SI 1998/1126, after
the multi-party political agreement concluded in Belfast on Good Friday 1998.
Voters in Northern Ireland were asked: ˜Do you support the agreement reached
at the multi-party talks on Northern Ireland as set out in Command Paper 3883?™
Of the 81 per cent of electors who voted on 22 May 1998, 71 per cent supported
the agreement. (See further chapter 4.)
The Labour Government undertook to hold a national referendum before
taking any decision to adopt the single European currency or to ratify the Treaty
establishing a Constitution for Europe. A draft Single European Currency
(Referendum) Bill was published in 2003, which speci¬ed the question to be
asked as: ˜Should the United Kingdom adopt the euro as its currency?™ A bill in
these terms is to be introduced in Parliament if the Government decides that its
criteria for adopting the single European currency have been met. A European
Union Bill was introduced in the House of Commons in May 2005. It provided
for a referendum to be held on the question, ˜Should the United Kingdom
approve the Treaty establishing a Constitution for the European Union?™ After
electors in France and the Netherlands voted in referendums to reject the Treaty
the Government decided against taking the European Union Bill through its
remaining parliamentary stages and it has accordingly lapsed.
Is it true to say that ˜the arguments against the referendum are also arguments
against democracy™? (V Bogdanor, The People and the Party System (1981), p 93.)
Or, on the other hand, are referendums incompatible with the principle of rep-
resentative parliamentary democracy and with the authority of an elected
Parliament? (Compare the views expressed in the Lords™ debate on an abortive
Parliamentary Referendum Bill on 31 January 2001: HL Deb vol 621, cols
763 et seq.) At all events it can no longer be said that the referendum is something
alien to the British constitution. Dicey™s view that proposals for major cons-
titutional change should be subject to ˜the people™s veto™ in a referendum (see
V Bogdanor, ˜Dicey and the reform of the constitution™ [1985] PL 652) has won
renewed support in our day, although there may be disagreement as to which
issues qualify for submission to the people under this head. Brian Harrison
remarks that the referendum ˜has been an instrument used by politicians for their
own purposes, not a restraint upon them™. He adds, however: ˜If the issue is
important it compels politicians, at the least, to make sure that the voters are fully
informed™ (The Transformation of British Politics 1860“1995 (1996), p 225).
Before any referendum is held, questions of principle and procedure have to
be settled “ for example, whether the referendum is to be binding on the
government or only advisory, how the referendum question is to be worded,
and whether a majority of votes in favour of a proposal is to be su¬cient, or is
to be e¬ective, say, only if it constitutes a speci¬ed percentage of the electorate.
If referendums are becoming a normal part of constitutional practice, it is
538 British Government and the Constitution

essential that they ˜should be conducted in a manner that is regarded by all sides
as e¬cient and fair™ (Constitution Unit Brie¬ng, November 1996). An indepen-
dent Commission on the Conduct of Referendums, established jointly by
the Electoral Reform Society and the Constitution Unit, recommended (Nairne
Report (1996)) that guidance should be put in place to provide ˜a practical basis
on which to develop an enduring framework for the conduct of referendums™
(para 40):

Guidance should be drawn up dealing with organisational, administrative and procedural
matters associated with holding a referendum. Established guidelines should include fixed
rules for some matters (for example, the organisation of the poll, the election machinery
and the count). For other matters, on which it is impossible to determine rules in advance
(for example, wording the question), the guidance should state how a decision should
be reached.

The Report itself included a set of twenty proposed guidelines. The Commi-
ssion saw a strong case for the establishment of an independent statutory com-
mission to be responsible for the conduct of referendums, so as to ensure public
con¬dence in the neutrality of the procedure and the legitimacy of the result.
(See also, Committee on Standards in Public Life, Fifth Report, Cm 4057-I/1998,
ch 12.)
The Political Parties, Elections and Referendums Act 2000 made general
provision for the conduct of major referendums in the United Kingdom, with
the object of ensuring that each side in a referendum campaign should have a
fair opportunity of presenting its case to the electorate. The Act provides for
a system of controls administered by the Electoral Commission. Individuals,
political parties or other organisations taking part in a referendum campaign
must register with the Commission. As ˜permitted participants™ they are subject
to expenditure controls which in respect of registered political parties are based
on the percentage of the vote secured by the party at the previous general
election. For instance, a party with more than a 30 per cent share of the vote “
attained by both the Conservative Party and the Labour Party in the 2005
election “ would be limited to £5 million; for the Liberal Democrats, with
22 per cent of the vote in 2005, the limit would be £4 million. For permitted
participants other than political parties there is a ¬xed limit of £500,000. Special
arrangements apply to ˜umbrella organisations™ designated by the Electoral
Commission as representing those campaigning on each side of the question.
An umbrella organisation is eligible for a grant from the Commission of up to


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