October 2017Weaving Pages: October 2017

Saturday, 14 October 2017

ESSAY: What is the place of referenda in 21st century democracies?

I mentioned a while back that I've spent a lot of this year writing essays. A lot of this year has also been dedicated to discussing referenda and what their purpose is or should be. In bringing the two together, I've decided to share this essay I wrote for a Law competition. I really enjoyed researching it, mainly because although I'd had the opportunity to study referenda in my politics lessons before, I got to look at the diverse approaches modern democracies have made of them which was fascinating. Read on to see what all this research led me to think about referenda:

When the results of the EU referendum were first broadcasted in the early hours of the 24th June 2016, what prevailed was an electorate uncomfortable with its own power for change. Whilst The New York Post spoke of “Power to the People”, French newspaper Libération wished the British public “Good Luck.” Britain’s modern democracy is now seemingly stuck in a paradox; what was an instrument of freedom for some, promised sharp apprehension for others. The consensus on referenda no longer exists, contrary to 20th century opinion of them as a manifestation of fascism.[1] In the ensuing uncertainty some allege that referenda should have no place in current society, and yet to do so is to deny the electorate one of the vital methods of amplifying their voice. As government legitimacy is threatened by political disengagement, referenda offer to remind citizens of their essential role in the democratic process. There are fundamental social and constitutional decisions that should not be left for elected representatives to decide, but must be returned to the very people whose livelihood they threaten. In recognising the weight of authority provided by referenda, governments must be prepared to stringently regulate their use in context of the technology-driven societies we live in today. Consequently, it is the duty of politicians to ensure the citizens they represent are fully informed and aware of the decision they are undertaking, free from a biased and vindictive rhetoric. Without these regulations, a referendum can be nothing more than an aggressive dispute with no certain conclusion. However with educated and cultivated discussion, referenda have the potential to give the electorate the ability to provide answers to the most pressing issues facing current democracies today and collectively strengthen their societies.
The most encouraging quality of referenda to twenty-first century democracies is their promising solution to the supposed apathetic climate surrounding politics to date. There is clear evidence we should be concerned with the public’s political engagement, with the turnout to the 2015 General Election standing at 66.1%, which is poorer than the 20th century low of 71% (excluding the 57.2% turnout at the start of the First World War).[2] This was addressed in 2006 in the POWER inquiry’s report on disengagement, which identified that the British public were not apathetic but simply unwilling to engage with formal participation as much as with informal participation.[3] In democracies, such disengagement threatens not only the effectiveness of political discussion but also the legitimacy and mandate of the governments that citizens elect to represent them. It is an acute problem that will only worsen as the public continually turns to petitions, pressure groups and ‘clicktivism’ (the advocacy of social issues through social media) to engage with politics. Accordingly, the POWER inquiry advocated the increased use of referenda as one method of increasing formal participation and addressing the potential crisis being faced. They suggested that by using referenda citizens could be directly given the opportunity to influence the verdicts that will shape the future of their country, something they feel they lack currently.
Therefore, it seems that referenda are critical for democracies to combat the increased disengagement countries are faced with today. However, crucially there is not sufficient evidence of this occurring to suggest that there should be steady use of referenda. In particular, Switzerland, which incorporates direct democracy into its constitution, has not observed a rise in political participation. In 2015, Electoral Participation stood at 48.5% according to statistics from the National Council Elections, a much lower turnout than at British general elections.[4] It must be acknowledged that the two are wildly different political cultures and systems, which limit the extent as to which such a comparison is useful. However, it should be noticed that this lack of involvement with referenda in Switzerland has been seen in the United Kingdom too. In 2011 a referendum was held proposing the use of AV to count votes at general elections, receiving a meagre turnout of 42.2%.5 Similarly, a referendum on devolution in Wales in the same year had a turnout of only 35.63%.5
Whilst this suggests the impact of referenda on political engagement to be limited, attention must be directed to how turnout differs based on the topic of the referendum. More recently turnout has been greater, with the Scottish Independence Referendum in 2014 receiving a turnout of 84.6%,5 whilst the EU referendum had a turnout of 72.2%.[5] Correspondingly, Switzerland, which has been traditionally recognised for low turnout due to common consensus, has experienced spikes in participation on issues such as the abolition of the Swiss Army in 1989 (69.18%)[6] and in 2001 when voting on joining the EU (55.79%).[7] These are all major constitutional –and often controversial- issues, establishing a common ground upon which the public is adamant in having its voice heard. Therefore, to ensure the most effective use of referenda, it is matters of critical interest to the nation that must be focused upon.
Despite this, an indiscriminative approach to referenda topics risks compromising a nation’s ability to govern successfully. In 2009, the Economist ran an article branding California “The Ungovernable State”.[8] The state utilises ballot initiatives that whilst intended to devolve power to the people, have plunged California’s economic state into turmoil. By allowing citizens to propose their own legislation, the majority of propositions aim to cut taxes or implement greater spending, meaning the budget has become completely unbalanced. 1978’s infamous Proposition 13, a prime example of the disorder caused by such a system, was passed with the intent to reduce and cap property tax –and also implemented a requirement of a two-thirds majority before any future increases- but in doing so has left the state reliant on income and capital gains taxes, unable to raise the money it needs to sustain public spending.
Ballot initiatives differ from referenda, as the latter do not allow citizens to decide what question is posed; yet California still maintains a clear warning on what could occur was the use of referenda so widespread. This has occurred in the UK in efforts to establish congestion charges in Edinburgh and Manchester where public approval was sought through the use of referenda in 2005 and 2008 respectively. In Edinburgh, £9 million was spent developing the charge proposals to no avail as public unwillingness to pay higher taxes saw them be rejected. Meanwhile in Manchester, the ‘No’ vote prevented necessary transport and infrastructure improvements despite Transport Secretary Geoffrey Hoon admitting there was no ‘Plan B’. Subsequently, referenda are not suited to the purpose of passing everyday legislation, where the expertise and experience of legislators is necessary to implement vital but sometimes contentious measures.
Regardless of the inherent problems in using referenda, for society to progress and for government to become more representative, the public should be able to vote on social issues as well. The governing bodies of modern democracies owe it to their citizens to be microcosms of the societies they represent. In doing so, they accumulate the vast ranges of opinion which develop from having greatly different experiences of life. Whilst diversity has increased it remains that even in the twenty-first century governments do not mirror their societies. This may not impact their ability to emphasise with the issues that impact underrepresented classes of people, but it does mean a majority of parliament has never felt the personal consequences of these issues. In Portugal, the first national referendum was held proposing the decriminalisation of abortion before 10 weeks in 1998. Having resulted in a ‘No’ vote, another referendum was held in 2007 passing the legislation successfully, reflecting the progression of social attitudes and political involvement. Contrastingly, in Northern Ireland abortion remains illegal unless the woman’s health or life is at risk, but opinion polls suggest the public wants change with 72% believing abortion should be allowed if the pregnancy is a result of a sexual crime.[9] The use of referenda would give the public the power to enact that change, and at the same time make the laws of the country more representative of the population in a way the government is currently failing to be.
Most importantly, we must analyse the use of referenda within the exact context of the twenty-first century. Undoubtedly, this is a technology-driven age. The domination of the Internet in Western society has bred a culture where politics cannot be viewed outside of the influence of both technology and the media. In his book The Rule of Law, Tom Bingham writes “In a modern democracy where the decision lies with the people, we must ensure they are fully informed and empowered to choose between conflicting opinions and alternating courses of action.”[10] Bingham applies this to freedom of expression, but clearly this is also necessary of referenda. In our societies where there has been an epidemic of ‘fake news’ and social media created ‘echo chambers’, it must be a prerequisite that before voting people are provided with sufficient, unbiased information to ensure a coherent discussion of the matter at hand. This may help with engagement but it can also ensure that the outcome of the vote is decided with complete consideration of its implications instead of opinions from insular social media accounts. In Switzerland, this is achieved by producing a booklet with “explanations by the cabinet” which provide a detailed but impartial overview of the different reasons for voting ‘yes’ or ‘no’.
Preventing the vicious fighting and divisive rhetoric that can occur over polarising issues is also essential. This defined the EU referendum, only serving to obstruct an informed debate from occurring as both the ‘Remain’ and ‘Leave’ campaigns resorted to fear-inducing tactics so as to pressure the electorate. The Leave campaign’s bus declaring that £350 million would be given to the NHS upon exiting the EU became notorious as the promise was quickly rescinded. Referenda need to be free of the negative rhetoric and manipulation that characterised campaigns on the EU vote, whilst politicians must be held accountable as representatives to the people to help them make the best decision possible. This does not require complete neutrality, but it does involve close regulation so as to generate a conversation, not a dividing conflict that fractures the nation.
Referenda are an intrinsic part of generating political involvement and enhancing our democracies in the twenty-first century, but they must be approached carefully to prevent an imperative debate from becoming the tool of populism. Democratic governments should take it upon themselves to institute reform of their use and prevent referenda from posing a question that they fail to answer. When the electorate votes there is no appropriate strategy or answer in place to respond to the outcome. The British electorate may have said “No” to the EU, triggering a historic shift within the constitution, but there was no “how”. The government was forced to acknowledge the lack of a concrete plan to fulfil the rule of the people, alongside a lack of national consensus on the country’s future. Referenda should not be proposed when the consequences are not clear; that itself is a violation of the government’s duty to ensure its citizens are well informed before they vote. To give the people the ability to rule, it is necessary to offer more than votes on arbitrary statements, but instead to develop direct democracy into more constructive forms such as citizen’s assemblies or public debates where a cohesive dialogue can occur. The greatest use twenty-first century democracies can make of referenda is to make them the conclusion, not the debate.

[1] Geoffrey Wheatcroft, 'Europhobia: A Very British Problem' (the Guardian, 2016) <https://www.theguardian.com/politics/2016/jun/21/brexit-euroscepticism-history>
[2] 'General Election Turnout' (UK Parliament, 2017) <http://www.parliament.uk/about/living-heritage/transformingsociety/electionsvoting/chartists/contemporarycontext/electionturnout/>
[3] Power To The People (The POWER Inquiry, 2006) <http://www.jrrt.org.uk/sites/jrrt.org.uk/files/documents/PowertothePeople_001.pdf> 

[4] Bundesamt Statistik, 'Politik' (Bfs.admin.ch, 2017) <https://www.bfs.admin.ch/bfs/de/home/statistiken/politik.html>
[5] 'Electoral Commission | Electoral Data' (Electoralcommission.org.uk, 2017) <http://www.electoralcommission.org.uk/our-work/our-research/electoral-data>
[6] 'Votation Populaire Du 26.11.1989' (Admin.ch, 2017) <https://www.admin.ch/ch/f/pore/va/19891126/>
[7] 'Votation Populaire Du 04.03.2001' (Admin.ch, 2017) <https://www.admin.ch/ch/f/pore/va/20010304/>
[8] 'The Ungovernable State' (The Economist, 2009) <http://www.economist.com/node/13649050>

[9] 'Northern Ireland: Nearly 3/4 Of Public Support Abortion Law Change' (Amnesty.org.uk, 2016) <https://www.amnesty.org.uk/press-releases/northern-ireland-nearly-34-public-support-abortion-law-change-new-poll-0>
[10] Tom Bingham, The Rule Of Law (1st edn, Allen Lane 2011).

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