The recent referendum has underlined some of the problems with referendums as a way of deciding issues. Here’s my ideas for lessons we might learn and apply in the future.
What I am discussing here isn’t applicable to the referendum held on 23 June 2016: it’s too late to fix that now.
Rule 1. Don’t have referendums insincerely
The odd thing about the three referendums under David Cameron’s premiership is that they were never intended to succeed: their purpose was to reinforce the status quo and shut up noisy factions. Having a referendum result in a Yes requires drastic actions be taken by a government that doesn’t want to do it, which turns out to be a disaster.
The Brexit referendum was held to try to suppress the Euroscepticism tendency within the Conservative party. The fact that the Tory party cannot agree on the European question and cannot address this by splitting in to two competing parties and letting the electorate decide is an emergent property of the UK’s first-past-the-post, winner-takes-all electoral system. The constitutional crisis resulting from the Brexit referendum is thus indirectly an argument for voting reform generally.
Rule 2. Restrict referendums to enacting specific constitutional change
What should referendums be used for? Not decisions on minority rights (like the Australian plebiscite on marriage equality) or details on taxation and spending (like in California): these are exactly the sort of thing parliamentary representatives are elected to vote on. As for constitutional changes, the British Parliament has enacted important changes in the past through having an election and then voting it through. So a referendum has not been considered mandatory in the past.
But assuming we do want a referendum to approve a constitutional change, it should come at the end of the legislative process, not that start. ‘Make Scotland an independent country’ is a pig in a poke; ‘Activate the Constitution for Scotland Act (2019), making Scotland a republic independent of the UK’ is a known quantity.
The process would be like this:
- The Scottish Nationals, Greens and Women’s Equality Party coalition is voted in.
- Constitutional convention held. Constitution thrashed out.
- Legislation written to do all the complicated things required to divide the UK up and activate the new constitution. All the changes in the new act are contingent on the act being activated by referendum.
- Constitutional lawyers, journalists, and lay people are given a decent interval to pore over the details and tweet their favourite bits.
- The BBC does an Archers storyline in which the characters discuss the ramifications of the new act.
- Referendum to either activate the Scotland Act or to maintain the status quo.
Compared to the 2014 referendum that’s a pretty high bar to clear. But it would let the campaign concentrate on dissecting concrete proposals rather than contrasting the fairy tales told by each side. It should also mean the government would be campaigning sincerely for a Yes vote.
Rule 3. Require a decisive vote
A week after the 52%:48% result of the Brexit campaign, 4% of Leavers and 1% of Remainers want to change their minds, which would on the face of it lead to the opposite result. It seems daft to have so important a decision so narrowly decided. Thus the well-known petition to call second referendum (originally posted before the referendum by a Leaver expecting to narrowly lose).
My suggestion would have be as follows:
if the Yes option gets a two-thirds majority (meaning at least twice as many votes for as against) then that is the answer;
if the No option gets a two-thirds majority then that is the answer;
otherwise the answer is No for now but the referendum may be rerun after some period of time.
This gives the proponents of the change several bites at the cherry (and perhaps opportunities for tweaking the legislation), but also allows for the issue to be put to bed if it is truly not capturing the national mood.
My suggestions for future legislators:
- Don’t have referendums insincerely;
- Restrict referendums to enacting specific constitutional change; and
- Require a decisive vote.
And consider the consequences of both a positive and a negative vote.