The referendum and the ‘rules of the game’

By: Joseph Ward

Britain’s referendum problem

Veteran columnist Matthew Parris dedicated his first column inches of 2021 to a topic that has crept down the political agenda in Britain since 2016: the referendum. This was a descent from heady heights, as the device became a prominent fixture of British politics throughout David Cameron’s premiership, with the fallout from the final direct vote of that period completely dominating the tenure of his successor, Theresa May. It is worth remembering that up until the general election of December 2019, a second vote to resolve the protracted political crisis around Brexit seemed a genuine possibility.

In the article, Parris acknowledged that discourse around the referendum had been more subdued in light of Johnson’s election victory and the Covid crisis. He suggested that it would soon resurface, however, with territorial questions concerning Scotland and Northern Ireland growing in salience in the post-Brexit landscape. The central thrust of Parris’s argument was that the increased prominence of the device in British politics must be met with ‘proper national consideration of the referendum as an institution’ in the form of a Royal Commission.

With local elections on the horizon, including those for the Scottish and Welsh Assemblies, it was not long before SNP leader, Nicola Sturgeon, validated Parris’s prediction. In the latest in a long line of pledges, Sturgeon announced her intention to seek a ‘legal referendum’ on Scottish Independence if the SNP won a mandate in May, and if Westminster refused to grant that power through a Section 30 order, the Scottish government would pass a bill to hold an advisory vote. Historian Robert Saunders responded to this announcement in a detailed Twitter thread in which he concurred with and complemented Parris’s position. Using the referendum example, Saunders suggested that Britain is ‘sleepwalking into a constitutional crisis’ where there is disagreement about the constitutional rules and boundaries within which the political game is played.

Decoupling politics and process

As noted by Parris, a survey of past experience of referendums in Britain reveals ad hoc adaptation of organisational and procedural issues. Whether it be the application of thresholds, who is entitled to vote, or government preparedness for adverse outcomes, UK governments have been inconsistent in their approach. Though these terms have for the most part been determined by the executive, parliament has also exploited government weakness in this manner, most notably pressuring the Callaghan government to hold direct votes on its devolution proposals and then adding thresholds to militate against reform.

The exception often presented is the New Labour era, in which the Political Parties, Elections and Referendums Act (PPERA) created the Electoral Commission and laid out certain principles and structure for the conduction of direct votes. However, the subsequent recurrence of these issues has revealed this legislation to be lacking in several areas, with many critical decisions remaining within the gift of the executive to change.

In the aftermath of June 2016, as the inability of the British system to cope with an unexpected referendum result became clear, several detailed reports were commissioned to investigate specific procedural issues. Foremost of these was the Independent Commission on Referendums (ICOR) convened by the UCL Constitution Unit, which enlisted many political and legal professionals to contribute their views. The ICOR report deals with an extensive range of procedural questions, many of which revealed themselves quite violently in the aftermath of 2016, from the separation of votes on principle from those on concrete proposals, to campaign governance and finance.

One consistent observation across these reports was that referendums in the UK had been subject to excessive manipulation by the executive, with the Commons Public Administration and Constitutional Affairs Committee (PACAC) memorably branding Cameron’s decision to hold an ‘In-Out’ EU referendum a ‘bluff call’. This point was said to apply specifically to Cameron’s use of the device, in that he repeatedly deployed it with the aim of closing down debate and preserving the status quo, rather than seriously considering both options on the ballot (see also Atkinson & Blick 2017). The specificity of this claim to the Cameron premiership is debatable, given that other Prime Ministers have arguably used the device in a similar manner.

However, the broader point was compounded by the fact that the PACAC and ICOR reports in particular had been drafted by, or in collaboration with, politicians themselves. Any comparison of the historical evidence and the conclusions of the reports reveals a considerable disconnect between how these politicians thought referendums should be conducted, and how they have been implemented by those at the helm of government decision-making.

The inability to detach the device from the political positions of the protagonists has led scholars of the British constitution to dismiss more principled discussions of the referendum. Anthony King’s scathing assessment of referendum politics was that ‘The debate on whether or not to hold a referendum in any given case is mostly a charade’. This pertained not only to the party-political wrangling of the 1970s and after, but also to Dicey, who originally proposed the direct vote as a ‘people’s veto’ to provide intellectual justification for his stance against Irish Home Rule.

The relationship between political conflict and the emergence of the referendum is one of many questions addressed in my doctoral research into the first cluster of referendum cases in Britain: the 1973 border poll in Northern Ireland; the 1975 European Communities referendum; and the post-legislative referendums on the Callaghan government’s devolution proposals, held in 1979.

One sense in which detailed archival research into these cases has been particularly striking is how the same procedural questions raised in the aftermath of 2016 repeatedly appear in official departmental assessments within government in the 1970s. In certain instances, lessons are drawn from precedential cases, for example through the use of a referendum order after the relevant primary legislation, to finalise the date and other aspects of the poll (e.g., 1973, 1975). Yet this seems to be the exception rather than the rule. Whether driven by the executive or by parliament, ostensibly organisational matters are repeatedly manipulated and politicised.

A Referendum Royal Commission?

Parris suggests that a referendum Royal Commission would formalise a set of rules and principles to manage implementation and limit the politicisation of the device itself. However, drawing on analysis of these initial cases and reflecting on the contemporary role of the referendum in British politics, I can think of two reasons to caution against presenting this process as a solution.

Firstly, evidence of the efficacy of the Royal Commission, or more recently the public inquiry, as a political institution in Britain, is patchy at best. Though convened within a different context, the Kilbrandon Commission on the Constitution (1969-73) provides a good illustration of how these processes can themselves become the subject of political conflict. The Commission could not agree on the terms of reference and recommendations, ultimately producing a majority report along with a memorandum of dissent from two members. Whilst the Wilson-Callaghan governments eventually attempted to implement devolution to Scotland and Wales on the basis of the proposals, the referendum, then only a fleeting consideration of the Commission, was wielded by opponents of reform in parliament as a means to reverse the measures.

Though a referendum Royal Commission might be perceived to have greater independence from the executive than other public inquiries, therefore, it is hard to see how it would not itself be subject to controversy, given the contentious context within which it would be operating. Moreover, as has been suggested by some constitutional scholars in the aftermath of 2016, to lend too much credence to the power of an inquiry to resolve these issues is to potentially overstate the capacity of legal or codified reforms to contain political conflict and contingency, particularly as manifest through the intervention of a popular mandate in the form of a referendum.

What are the rules of the game?

Secondly, it is important to clarify what the ‘rules of the game’ are, or have been, in British politics hitherto, and what this might tell us about the referendum predicament. Whilst historically Britain’s political constitution was said to be governed by a set of informal norms and conventions between political elites, many have noted the decline of this system of ‘club government’ since the 1970s. This is arguably no bad thing, as the anti-democratic and exclusive nature of the system made it difficult for the vast majority of the British public to engage with and access it.

As elements of the old system crumbled, however, no clear set of governing principles emerged in its place. Scholars such as Jim Bulpitt argued that despite the continued outward appearance of remnants of the old system, the rules of the game had coarsened in response to democratic competition. According to Bulpitt, British politics thus amounted to ‘one long electoral campaign’, focused entirely on securing and maintaining office.

When viewed from this vantage point, the chaotic and unprincipled emergence of the referendum is less surprising. Every government which has implemented a direct vote has, understandably, had a vested interest in the issue, and has to a greater or lesser extent sought to manage the process in such a way as to secure their preferred outcome. Whilst the majority of the time governments have been successful in this endeavour, when they’ve failed to maintain control over elements of the process, their political opponents have sought to capitalise.

Royal Commission or otherwise, within the confines of this adversarial, electorally-driven system, it is difficult to see how a more principled basis for referendum implementation would emerge without controversy. In lieu of any coherent governing principles to replace the outdated ‘club government’ model, the currency of electoral success is worth more than the currency of principle.

Ultimately, whilst the Royal Commission proposal is a valiant attempt to resolve the confusion surrounding the use of the referendum in Britain, arguably the referendum predicament is a symptom of a more deep-seated institutional malaise within the British state. Sturgeon and Johnson’s respective advocacy and resistance to IndyRef#2 provide evidence of the territorial dimension of this conflict. And until an appetite for a new constitutional settlement emerges, political expediency and electoralism will continue to reign as the prevailing governing principle.  

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.

Joseph Ward is a Doctoral Researcher in POLSIS at the University of Birmingham.

Latest article: Ward, J. W. (2020), ‘Reasserting the Centre: The Brexit Doctrine and the Imperative Mandate in British Politics’, Parliamentary Affairs, [Advanced Online] https://doi.org/10.1093/pa/gsaa015