When should the people decide?
Vernon Bogdanor
The strongest tendencies displayed by the popular vote were, according to Lecky, 'a dislike to large expenditure, a dislike to centralisation, a dislike to violent innovation'. The referendum, accordingly, is commonly believed to be a conservative rather than a radical weapon. Indeed, when in 1972 Mr. Roy Jenkins resigned from Labour's Shadow Cabinet in protest against the decision to support a referendum on Britain's entry into the EEC, he warned that the referendum would prove the most powerful barrier to progress that Britain had seen since the unreformed House of Lords.
Yet the Conservative Party has never, despite occasional flirtations, been able to accommodate itself to the regular use of the referendum; and Mr. Nicholas Edwards MP, the chairman of a Conservative Party Committee on The Referendum and the Constitution, which has just reported, was given an unenviable task. For leading Conservatives had raised expectations which it would prove hard to fulfil. Mr Teddy Taylor had advocated a referendum on capital punishment; but would MPs be willing to surrender their consciences to the electorate on such an issue? Should they be required to do so? Mrs. Thatcher had suggested that a referendum could be used in a situation of industrial conflict such as brought down the Heath government in 1974. Yet a referendum in such a situation might be akin to a game of Russian roulette. What if the government won, but the trade union concerned refused to acknowledge the verdict?
Nevertheless the referendum has already been invoked by aConservative government (the border poll in Northern Ireland) and a Labour government (the EEC and the Scotland and Wales Acts), It is likely to be used again. Therefore, instead of becoming involved in a sterile argument about the pros and cons of referenda, Mr Edwards's committee rightly sought to discover how the referendum could be used to improve the quality of government in Britain.
The committee came to the conclusion 'that it was as a constitutional safeguard that the referendum was most urgently needed and where its use could be most easily reconciled with our existing system of parliamentary democracy.' For it was vital to provide an insurance against the intro duction of fundamental changes in the constitution which the majority of electors did not want. The committee accordingly proposed the introduction of a Constitution (Fundamental Provisions) Bill to provide for a referendum before any such fundamental change, and the setting up of a Referendum Commission `to draft the question and to supervise the conduct of the referendum.'
But what is to count as a 'fundamental change in the constitution' in a country such as Britain which lacks a written constitution? For if there is no clear dividing line between what is constitutional and what is not, then it will be left to the government of the day to decide what issues are to be referred to the people. This would add enormously to the powers of the executive. For the government could then use the referendum as a tactical device to overcome back-bench opposition, as the present government has done with the Scotland and Wales Acts. Opposition to government legislation in the Commons will be disarmed since MPs will be told that they are denying the people their right to express an opinion. Far from acting as an instrument of constitutional protection, therefore, the use of the referendum in such circumstances would destroy one of the already flimsy barriers to the omnicompetence of British governments.
The committee was of course aware of this problem, and sought to evade it by enumerating what was to count as 'constitutional' legislation. Protection would be given to the continued existence of the House of Lords, and a referendum would be necessary before it could be abolished. The unity of the realm would be protected by requiring referenda before either devolution or independence was conceded to any of the constituent parts of the United Kingdom, and any alteration in the electoral system would also need to be ratified by a referendum.
Yet it is doubtful if this list really provides a sufficient check upon government to alleviate the condition which Lord Hailsham has called 'elective dictatorship'. It certainly excludes many issues which Conservatives might regard as having constitutional importance, such as the legislation adding to the privileges of the trade unions, the bill abolishing pay beds in National Health hospitals, the bill removing the disqualification on the Clay Cross councillors, or, in the Sixties, the use of retrospective legislation to deprive the Burmah Oil Company of its war damage compensation awarded by the courts.
All of these measures were introduced by governments elected on a minority vote, and would probable have been rejected by the electorate in a referendum; perhaps they would probably have been rejected by the referendum confined to Labour Party voters. Yet the committee's proposals would do nothing to protect the public against them. Admittedly, the committee advocated that the proposed Bill should include provision for the government of the day to hold referenda on 'non-constitutional matters'. But it is hardly likely that governments will willingly submit measures which they know to be unpopular, to the electorate: here, also, they will use the referendum to increase their power by appealing over the heads of dissident MPs.
If the referendum is to become part of British constitutional practice, therefore, some authority other than the government must be found to decide when a Bill is to be referred to the people. The committee, however, found it 'extraordinarily difficult to devise a satisfactory triggering mechanism if the referendum is to be used as a defence against arbitrary government or as an expression of popular will.' For in the absence of a written constitution, such a triggering mechanism can only be found if the referendum is introduced as part of an overall constitutional settlement.
The referendum could play a genuinely constitutional role in Britain only in the context of a directly elected Second Chamber, as advocated by Lords Carrington and Hailsham, which could compel the government of the day to submit controversial measures to the people before they become law. The government would have the right to submit any bill to referendum in the case.of deadlock between the two Houses. Such occasions would be unlikely to occur frequently. For governments would not have recourse to the referendum unless they believed that they would win: while the Lords would compromise if they realised that public opinion was not behind them. The Commons would thus retain its supremacy, and the government would be able to secure its legislation provided that it could obtain either the acquiescence of the Lords or the support of the people.
The committee no doubt felt that it lacked the authority to undertake a wide — ranging review of the constitution: and it did not wish to trespass on ground already covered by Lord Home's Conservative Review Committee on the House of Lords. Yet, sooner or later, Conservatives will have to look beyond piecemeal proposals and decide whether to seek a new constitutional settlement which will transform an elective dictatorship into a limited government under law, while at the same time bringing the electorate into closer contact with government. It should not be a difficult choice for Conservatives to make.
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