Advisory Referendums: When to seek the views of the people?

Adam Webster

Introduction

In representative democracies such as the United Kingdom and Australia, the legislative power is vested in the parliament. Parliament can pass laws on any topic it chooses within the scope of its legislative power. Within the scope of that power, there is no legal requirement for parliament to seek first the opinion of the people on any proposed legislation by way of an ‘advisory referendum’ (referred to as a ‘plebiscite’ in Australia). While the result of an advisory referendum might place political pressure on government or provide government with a political mandate, it does not place a legal obligation on government. Equally, the result from an advisory referendum does not bind members of parliament when considering any subsequent legislation on the issue that was the subject of the advisory referendum.

Both the parliaments of the United Kingdom and Australia have held advisory referendums from time to time. Most recently in the UK, the public voted on the question of whether to ‘remain a member of the European Union or leave the European Union’.

In Australia in 2016, the Liberal-National coalition government proposed an advisory referendum on the question of whether the law should ‘be changed to allow same-sex couples to marry’. The legislation authorising the advisory referendum was defeated in the Australian Senate and the public vote in February 2017 promised by the government did not take place. The government provided no indication as to whether this vote would be a ‘one-off’ or whether other contentious issues would be put back to the people. The Australian experience raises the question of whether there is scope for an increase in the use of advisory referendums within a system of representative government.

Is it possible to develop guiding principles as to when parliament should hold an advisory referendum that are consistent with a system of representative government?

Referendums in the UK and Australia

In both the United Kingdom and Australia advisory referendums have been used sparingly at a national level. In the UK this might be explained by the opposition to referendums on the grounds that they are at odds with sovereignty resting with the parliament. In Australia, the limited use of advisory referendums can perhaps be explained by the fact that the Australian Constitution already provides a mechanism for a referendum process for amending the Constitution. This arguably reduces the need for advisory referendums on ‘constitutional issues’ in Australia, which is when referendums have most frequently been deployed in the UK.

United Kingdom

Advisory referendums have been used infrequently at a national level in the UK. There have only been three national advisory referendums:

• The first national referendum in the UK was held in 1975 on the question of whether the UK ‘should stay in the European Community (the Common Market)’.
• The second national advisory referendum was held in 2011 and asked the voters whether the ‘first-past-the-post’ voting system should be replaced with an ‘alternative vote’ system for House of Commons elections.
• The third national advisory referendum was the 2016 vote on whether to remain in the European Union. 

There have been 11 other advisory referendums of significance held in the UK, but these have not been at a national level. Advisory referendums in the UK have broadly dealt with ‘constitutional issues’. That is, issues dealing with sovereignty, independence, devolution and methods of election. In contrast, while the use of advisory referendums in Australia has also been limited at a national level, they have been used to seek the views of the people on substantive policy issues.    

Australia

In Australia, a distinction is drawn in terminology between a ‘referendum’ and a ‘plebiscite’. The term ‘referendum’ is used when referring to a vote by the people on an amendment to the Australian Constitution. The term ‘plebiscite’ is used in Australia to refer to a question put to the people that is advisory in nature and not binding on the parliament or the executive (an ‘advisory referendum’). Unlike in the case of a referendum to amend the Constitution, the result of a plebiscite does not bring into effect any change to legislation or to the Constitution.

Only three national advisory referendums have been held in Australia since federation. The first two advisory referendums, which dealt with the issue of conscription during the First World War, were held in 1916 and 1917. A further advisory referendum on the question of which song should be Australia’s national anthem was held in 1977.

Unlike in the UK, the use of advisory referendums in Australia has extended to questions of substantive policy. However, without some guiding principles as to when advisory referendums are appropriate, there is a risk that they are used as a political tool – as a mechanism by which parliament or the government can avoid or delay taking responsibility for addressing an issue – rather than as a genuine attempt to ascertain the view of the people.

Limiting Referendums to Four Issues

The fundamental principle of representative democracy is that the parliament is comprised of representatives elected by the people. Each individual member of parliament represents the people of their electorate. The member of parliament’s authority comes from the member receiving support from a majority of their electorate (or a majority who voted). The people choose their representative knowing the structure of the parliament and the scope of the power of the parliament. If the people are not satisfied with the legislation that the parliament has enacted, they can elect different representatives and change the composition of the parliament at the next election. Future parliaments are not bound by previous parliaments and can repeal the legislation of a previous parliament.

There might be some instances when referring questions back to the people is not inconsistent with representative government. I identify 4 areas in which an advisory referendum is consistent with responsible government. If representative government is founded on the principle that the people elect someone to represent them in the parliament, then significant changes to ‘the parliament’, ‘the people’ or ‘the election process’ should be put back to the voters in an advisory referendum.

First, to make changes to the parliament – either to the structure of powers of the parliament – is to alter the assumptions upon which a voter cast their vote. Structural changes could include such matters as abolishing a chamber of the parliament or becoming a republic by removing the monarch from the parliament. In the UK, changes to the powers of the parliament could include questions of devolution or exiting the EU. Exiting the EU would change the law-making powers of the parliament because, as the Supreme Court noted in Miller, the European Communities Act ‘effectively operates as a partial transfer of law-making powers … by Parliament to the EU law-making institutions.’

Secondly, to reduce the franchise – the people – is to remove a proportion of the electorate that the member of parliament was elected to represent during that term. Putting questions of this nature back to the people is, therefore, entirely consistent with the principle of representative government.

Thirdly, putting changes to the election process back to the people would also be consistent with representative democracy. This could include change to the voting process or the frequency of elections.

Within a parliamentary democracy, parliament cannot bind future parliaments and is not bound by the decisions of the previous parliament. Where there is a change in government, it is not uncommon for parliament to reverse the previous government’s decisions by repealing or amending legislation. Finally, however, there will be some decisions of the parliament that, from a practical perspective, will be irreversible by future parliaments, and putting such decisions back to the people would be consistent with representative government. This might include decisions that cause environmental harm that is irreversible. For example, decisions that lead to:

• the extinction of a species of flora or fauna;
• the destruction of a natural habitat that cannot be reversed (or cannot be reversed anytime soon);
• the construction of a nuclear facility (perhaps a nuclear power plant or a nuclear waste dump) where the construction would mean that once constructed, the contamination could not be removed from the land. (This might be contrasted with a waste dump where the waste could be moved to another site, albeit at considerable financial expense).

From a practical perspective, these sorts of decisions cannot be altered and bind any future parliament. In these cases, the public is not afforded the opportunity to reverse the decision by changing the government at the next election.   

One Further Referendum Topic?

There is one further category that, while not requiring legislative action, might be considered appropriate to seek the views of the people: selecting national symbols (flags or coats of arms) or selecting issues of national identity (national anthems, national flora or fauna). The recent public vote in New Zealand to change the national flag is one example of this. These decisions do not require legislative action and therefore are not instances of the parliament referring an issue to the people that is already within the scope of the parliament’s power. It therefore seems appropriate that such issues be put to the people.

Conclusion

In a representative democracy parliament is given the power to legislative as it sees fit. However, if responsible government is founded on the principle that the people elect their representatives to the parliament, then referring changes to ‘the people’, ‘the parliament’ and ‘the election process’ back to the public by way of an advisory referendum is not inconsistent with the principle. Further, there might also be scope for advisory referendums on matters that, from a practical perspective, bind future parliaments.