Referendums have been a successful form of Direct Democracy and we should have more of them. Discuss.
Winner of the Exeter Law Review essay competition 2020
The Oxford English Dictionary defines a referendum as ‘a general vote by the electorate on a single political question which has been referred to them for a direct decision’, allowing citizens to vote to either approve or reject policies proposed or enacted by the legislature. In the United Kingdom (UK) there have been three referendums: in 1975, 2011 and 2016. The 1975 referendum questioned whether the UK should stay in the European Economic Community, with the majority voting for a continued membership. The 2011 referendum questioned whether the UK should adopt the ‘alternative vote’ (AV) system to which the majority voted ‘no’. Most recently, the 2016 ‘Brexit’ referendum was to decide whether the UK should leave the European Union (EU), the outcome being ‘leave’, but only by two per cent. The key points being assessed here are direct democracy, the public vote and uncertainty, in order to analyse whether referendums have been successful in the UK and whether more should be held.
Part 1: Direct Democracy
Referendums engage the nation in decision-making, which directly impacts their own constitution. This ensures a broad base of political support for controversial decisions where government is divided. A result of this is majority satisfaction, making the outcome fairer and harder to dispute. Webster argues that this grants legitimacy to government proposals and promotes the values of a representative democracy. This is supported by Auer, who states that laws, rules and regulations need legitimacy in order to be accepted by those obliged to follow them.
It has been argued that there are some issues which are of ‘such fundamental importance’ that a parliamentary verdict alone is insufficient to ensure legitimacy. There is also a commonly held view that the people are the highest authority of the state, with their decision standing independently, rather than as a political majority. As there is an underlying assumption that the executive is a representative system, it is important to follow through on this, with Webster believing that the more significant the change, the greater the value of a public vote , providing the sufficient legitimacy to make the proposed changes. This justifies the use of referendums as it enhances a representative government, preventing parliament from abusing their powers. Direct democracy also prevents the government from acting in self-interest, thereby maintaining trust between the electorate and its representatives. Therefore, it can be argued that referendums are crucial in achieving direct democracy and legitimacy.
However, Auer also addresses the limits of direct democracy, one of which being that it puts governing bodies in a position where the people may make a binding decision that they disapprove of. There is then no way of departing from this decision without breaching the trust of the electorate. This can prove to be an issue, as the government often only prepares for the outcome they were hoping for, not the opposing outcome, as was seen with Brexit. Furthermore, lack of voter engagement limits legitimacy, as the results are less representative and reliable if engagement is low, as was seen in 2011. Whereas, a voter turnout of 64.5% in 1975 was seen to strengthen the new Labour government’s legitimacy.
Direct democracy means that important decisions are made by inexperienced voters rather than professional politicians. Tierney believes referendums are vulnerable to elite control, as inexperienced voters are influenced by false promises and propaganda, which was demonstrated by the ‘Boris Bus’ pledge of 2016, leading to results not being representative of what the people actually wanted. Likewise, short campaigns, as in 2011, leave insufficient time for the electorate to ‘learn about the consequences of their vote’. Therefore, adequate regulation on matters such as elite control is necessary to increase success of referendums.
Part 2: Public vote
Due to people voting on topics they are ill-educated on, close votes, such as Brexit (52:48) are relied upon. Whereas, if people were better informed, there is a high chance that such narrow margins would not have to be relied upon. Furthermore, politicians have to justify their views, the public do not. This results in members of the public who have neither learnt about, nor debated the issues, having power over the outcome, without necessarily knowing the implications of these outcomes. Supporting this view is the argument that government parties are elected to make decisions which are representative of public views, therefore the public should not have to make any decisions themselves.
Many people vote for self-interest rather than what will benefit the nation as a whole, which is no better than the government choosing the option which benefits them. Tierney also argues that referendums tend to aggregate pre-formed opinions, instead of promoting meaningful deliberation. Therefore, the options in the referendum are rarely considered to the extent they should be. The 1996 Report attempted to tackle this issue by advocating that both options in the referendum should be broadcasted equally, rather than the different political parties being aired equally, and recommended that these are not transmitted during referendum campaigns.
Part 3: Uncertainty
Generally, referendums only have two options and are therefore too narrow. When there were proposals about a second Brexit referendum, which would have included three options, it was predicted that the results would have been very different compared to the 2016 referendum. This proves that the initial results were not representative of people’s actual views, as they were merely voting for the closest option to their preferred outcome, leading to decisions which are not necessarily what the voters believed was the best way forward. This proves referendums to be unsuccessful in this respect. However, Tierney argues that many of the issues with referendums are problems of practice and not principle. This implies that referendums have the potential to be successful, they just require certain amendments in how they are practiced, such as the number of options given and their inclusivity.
Referendums, as they currently stand, come with much uncertainty. They are used as a mechanism for entrenching key constitutional features due to the UK’s lack of a codified constitution, yet they are generally not legally binding. This is shown by the fact that there was talk about disregarding the results of the Brexit referendum and holding a second referendum. Therefore, referendums require more authority in order to increase certainty. As they are often politically binding, circumstances like David Cameron’s resignation after the Brexit referendum, after the result did not go his way, increase uncertainty.
It has been argued that the Political Parties, Elections and Referendums Act 2000 provides little clarity on the role of referendums in the UK, leaving it ‘open-ended’ and therefore the legal implications of referendums are currently determined on a case-by-case basis. This can be seen by the contrast between how the 2011 Alternative Vote referendum was dealt with, compared to the 2016 Brexit referendum. For the 2011 referendum, the paths to be followed in the case of both possible outcomes were outlined, by way of enforcing or repealing legislation. Questions surrounding how the outcome of a referendum will interact with existing law were also answered, emphasising that it is not an unsolvable problem, just one that has not been massively touched upon in existing legislation. Conversely, the 2016 Brexit referendum made no such provisions for the outcome of the vote.
New primary legislation is required in order to clarify and provide guidance about the outcomes of referendums, their conduct and the type of questions they should contain. Munro argues that there should be a statutory framework for the conduct of referendums, as there is a current absence of provisions or agreed criteria, leading to the practice potentially being stretched further than is desirable. However, Trueblood acknowledges that such reforms will not solve all problems, for example it will still not provide a guarantee against abuse and may actually cause more harm than good by providing a new element of rigidity.
Despite a great amount of support for referendums, as they increase direct democracy and therefore legitimacy, they are subject to abuse and elite control by governmental bodies, allowing inexperienced members of the public to vote on serious matters which would have usually been decided by professional politicians. The voting options are extremely narrow, leading to the results being unreliable and high voter engagement is required in order for a referendum to practice direct democracy and therefore be successful.
There is much uncertainty surrounding whether referendums will be enforced and what the outcome will be if they are. Based on outcomes, only two out of the three UK-wide referendums could be considered successful from the government’s perspective. Therefore, it is vital that adequate legislation is introduced to regulate referendums, outlining when they will be binding, what the outcome will be in the case of either result, the procedure to be adopted when a referendum is taking place and any rules and regulations surrounding the practice. This is crucial in order to increase legitimacy and direct democracy, whilst reducing elite control and uncertainty. Until this clarity has been achieved, the use of referendums should be limited as they can produce more unjust outcomes than just.
 ‘referendum, n’ Oxford Compact English Dictionary (Oxford: OUP 1996).
 Adam Webster, ‘Referendums in the UK and Plebiscites in Australia: When to Seek the Views of the People?’ (2019) PL 746, 749.
 ibid 747.
 Andreas Auer, ‘The People Have Spoken: Abide? A Critical View of the EU’s Dramatic Referendum (In)experience’ (2016) 12 ECLR 397, 402.
 Vernon Bogdanor, ‘The New British Constitution’ (Oxford: Hart Publishing 2009).
 Auer (n 4) 402.
 Webster (n 2) 760.
 ibid 752.
 ibid 760.
 Auer (n 4) 402.
 House of Lords Select Committee on the Constitution, Referendums in the United Kingdom (HL Paper 99, 2009) .
 Stephen Tierney, ‘Direct Democracy in the United Kingdom: Reflections from the Scottish Independence Referendum’ (2015) PL 633, 637.
 ibid 635.
 Del Loewenthal, ‘Brexit, Psychotherapy and Moral Psychology: Individualism Versus the Common Good’ (2016) European Journal of Psychotherapy & Counselling 18(3) 203, 203.
 Tierney (n 11) 647.
 ibid 635.
 ibid 634.
 Sir Patrick Nairne, ‘Report of the Commission on the Conduct of Referendums’ (1996).
 Eline Schaart, ‘UK poll predicts 8-point victory for Remain in second Brexit vote’ (Politico, 5 November 2018) <https://www.politico.eu/article/uk-poll-predicts-swing-to-remain-in-second-brexit-vote/> accessed 3 March 2020.
 Tierney (n 11) 635.
 Alan Renwick and Jess Sargeant, ‘UK Referendum Practice and Regulation Needs Urgent Reform’ (2018) 5 EHRLR 422, 423.
 R (on the application of Miller) v Secretary of State for Exiting the European Union  UKSC 5.
 Arend Lijphart, Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries (Yale University Press 1984).
 Political Parties, Elections and Referendums Act 2000.
 Leah Trueblood, ‘Legislating for referendums in the United Kingdom’ (2020) PL 49, 51.
 Parliamentary Constituencies and Voting Act 2011, s 8.
 Trueblood (n 22) 50.
 ibid 50.
 ibid 55.
 Colin Munro, ‘Power to the People’ (1997) PL 579, 586.
 Trueblood (n 22) 54.