Referenda: Democracy in action or dictator’s device?

Referenda: Democracy in action or dictator’s device?

by Jill Stephenson
article from Wednesday 27, December, 2017

GIVING EVERYONE a say in policy matters through the medium of a referendum is the ultimate in democracy, isn’t it? Well, no, it isn’t. The referendum appears to be thoroughly democratic because everyone’s voice counts equally. By contrast, in parliamentary elections, the result often depends on a few thousand voters in marginal constituencies. In a safe Labour or Conservative seat, the votes of those supporting other parties don’t matter. Yet the parliamentary system is one of representative democracy, where we elect a representative to cast a vote in the legislature on our behalf. These representatives have the time and the resources to brief themselves on often complex issues on which legislation is proposed, and also to pursue special interests on which individual MPs can become expert. The Liberal Democrat MP, Norman Lamb, for example, has a strong interest in mental health care and makes informed interventions on that subject. By contrast, in a referendum the entire electorate is entitled to vote, without necessarily being informed in detail about the issues at stake. The distinguished biologist, Richard Dawkins, said before the Brexit referendum: ‘I wouldn’t leave a decision on something as important as this to anyone as ignorant as I am’. Good point.

The plebiscite, or referendum, has been portrayed as an expression of popular sovereignty in which an entire population – of a country, a province or a district – votes on a specific question. It has been much favoured by authoritarian rulers, for whom consulting the people directly, rather than through political parties or other intermediaries, has been seen as advantageous. Similarly, I recall a head of department going over the heads of members of academic staff to consult students on a matter on which he trusted them, but not us, to give the ‘right’ answer. Wikipedia tells us that a referendum ‘is synonymous with a plebiscite’, but the psephologist Richard Rose is of the view that there is a difference between the plebiscite and the referendum. The former is used, he says, in non-democratic states and the latter in democracies. The term ‘plebiscite’ derives from the Roman Republic where it (as plebiscita) was the term for a decree of the Plebeian Council, the popular assembly.

In an authoritarian state, the ruler asks for validation of his rule, or of a particular policy, by popular consent. As Napoleon put it: ‘authority must come from above and confidence from below’. The conditions can be skewed to favour the answer the ruler wants. For example, in the plebiscite held in Germany in April 1938, to approve the absorption of Austria into the German Reich (the Anschluss), ballot papers had two options: an outsize box to tick for ‘Ja’ (yes) and a tiny box to tick for ‘Nein’ (no). It was clear which answer was required. In that case, the plebiscite validated a fait accompli. But Rose goes too far in calling a plebiscite ‘a negative term referring to an unfair and unfree vote in an undemocratic political system’. After all, the holding of the Saar plebiscite in 1935, when Hitler was in power, to decide the fate of the Saarland, which was under League of Nations’ jurisdiction, had been decreed in 1920, as a result of the Treaty of Versailles of 1919, when Germany was a democratic republic.

‘Referendum’ is thought to have originated in a Swiss canton in the sixteenth century. A referendum, according to Rose, is a free, fair and competitive vote. It is democratic if the wording of the question, and the rules governing the campaign, give both proponents and opponents of the issue the ability to compete on fair terms and votes are cast and counted without fraud.

This says nothing about the composition of the electorate or the requirement for victory: does everyone on the electoral register vote? Is fifty per cent plus one vote sufficient for victory? The Brexit vote of 2016 yielded a 52:48 majority for leaving the EU – a major constitutional change. On closer inspection, this meant that thirty-seven per cent of the registered electorate voted for Brexit and that minority has carried the day. It further meant that twenty-six per cent of the UK’s population supported Brexit, just over a quarter. This was not exactly a ringing endorsement for major constitutional change.

The referendum has been favoured by different kinds of regime in different countries at different times. French revolutionaries and Napoleon favoured it. Napoleon validated his appointment as First Consul in 1799 and his assumption of the title of hereditary emperor in 1804 through referendums. His nephew, Louis-Napoleon (Napoleon III), held a referendum to approve his proclamation of the Second Empire in 1852. In post-war France, a referendum rejected the resurrection of the failed Third Republic, and then referendums were used by De Gaulle to approve the constitution of his Fifth Republic and much else. A contemporary cartoon showed De Gaulle attired as Louis XIV, wearing a period wig, each of whose curls was in the form of ‘oui’, with the title: ‘L’oui Quatorze’. The implication that he was an autocrat was clear, but misguided: the referendum proved to be De Gaulle’s undoing. In 1969, he lost a referendum on regionalisation and reform of the senate, with 53.5 per cent of the votes against him and, as he had promised, resigned.

It is worth noting that, otherwise, French referendums have invariably had a large majority in favour of the proposition, usually at least seventy-five per cent.

The European country which has resorted to referendums most frequently, Switzerland, allows a referendum to be held if a ‘citizen’s initiative’ is supported by 50,000 signatories or, in the case of constitutional issues, 100,000 signatories. These ‘initiatives’ run in parallel with referendums proposed by federal or canton governments. In the year from June 1993 to June 1994, the Swiss went to the polls five times to vote on twenty-one federal initiatives and referendums. Swiss referendums can be quixotic. In 1961, a referendum resulted in a law to raise the price of petrol by seven centimes being voted down, but an amendment to raise the price by five centimes being passed. How democratic Swiss federal referendums are is a moot point: only sixty per cent of Swiss inhabitants are registered to vote, and on average only forty per cent of them turn out to vote. As a result, only about twelve per cent of Swiss need to vote for a proposition in a federal referendum for it to pass – or to vote against for it to fail.

In some countries, supermajorities are required for constitutional change to be enacted. In the USA, changing the constitution requires the agreement of not merely two-thirds of the Congress, but of three-quarters of the state legislatures, too. The independence referendum in Montenegro was held on the basis that fifty-five per cent of the votes must be cast for the proposition, on a minimum turnout of fifty per cent. There was something not dissimilar in the Scottish devolution referendum of 1979. George Cunningham, a Scot who was MP for an Islington seat, won an amendment to the Scotland Act, 1978, requiring a winning majority in the referendum to constitute forty per cent of the total electorate. Nationalist Scots have never forgiven him.

It is now the case in the UK that there has to be a two-thirds majority in parliament for a dissolution of parliament to occur within the five-year fixed parliament term, although a vote of no confidence in the government can also achieve a dissolution. Elsewhere supermajorities are in use for parliamentary business. For example, in Italy, the government fell in 2007 because it won a vote in the Senate by too narrow a margin – 158 to 136, in a house with a total membership of 318. This meant that it did not achieve an absolute majority, with twenty-four members abstaining. The supermajority is common in other contexts, also. In 2017, there was a cause célèbre when The Honourable Company of Edinburgh Golfers (Muirfield) voted on admitting women members. The required threshold was a two-thirds supermajority. It is worth noting that the constitution of the Scottish National Party requires a two-thirds majority for changes to be effected.

The referendum looks, on the face of it, to be the epitome of democracy. There is a mass electorate and every vote counts. How unlike our long-established system of representative government, where electors elect a government indirectly, through a constituency system with MPs as representatives. The first-past-the-post system throws up various anomalies, and has very rarely produced a government enjoying the support of a majority of the electorate. Nevertheless, as a long-time supporter of proportional representation, I now find myself questioning it. In the Scottish parliament, at present, the minority SNP government can achieve a majority with the support of six Green list MSPs, none of whom was personally elected as a constituency MSP. The Greens won a mere 13,000 of first preference votes in May 2016. This unpopular minority party now holds the balance and can act as policymaker.

Holding referendums to decide on major constitutional change is a thoroughly bad idea. They give the advantage to demagogues who can mislead people who have a vote but are unlikely to inform themselves fully about complex constitutional issues – that is, most of us. The demagogue plays on the emotions rather than engaging with the intellect. Remember Michael Gove’s rough dismissal? ‘We’ve had enough of experts’. Yet experts are precisely what are needed to unravel complex issues. It is an abdication of responsibility by our parliamentary representatives when they pass the burden of decision-making on to the population at large, when they, the representatives, have the time and resources with which to inform themselves about the detail of complex issues.

Again, deciding the result of a referendum on a constitutional issue on the basis of fifty per cent plus one vote is a recipe for societal division, as we have seen in Scotland. If we have to have referendums – and I would prefer that we didn’t – then they should be held with a requirement that a supermajority be achieved. A two-thirds majority for constitutional change would mean that a very clear majority of the population endorsed the change: momentous change requires overwhelming endorsement.

It is to be hoped that the unhappy precedent set by Harold Wilson in 1975 with his referendum on EU membership, of importing referendums into our parliamentary representative system, will not result in further referendums. The two held in recent years, in Scotland in 2014 and on EU membership in 2016, have generated antagonism and bile of a kind that has divided society and left a legacy of bitterness. Far from being a liberating force that has had a positive effect by empowering the voter, the referendum has had unremittingly negative effects.

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