fabian tract 434 the referendum reconsidered chapter 1 introduction 1 2 the referendum in theory 3 3 the referendum in practice 5 4 the referendum in perspective 17 5 the context of reform 21 6 conclusions 23 this pamphlet, like all publications of the Fabian Society represents not the collective view of the Society but only thE· view of the individuals who prepared it. The responsibility o· the Society is limited to approving publications it issue~. as worthy of consideration within the Labour movement Fabian Society, 11 Dartmouth Street, London SW1 H 9BN March 1975 ISBN 7163 0434 1 introduction ' The proposal to establish the referen- ·lum in this country seems to have :ntered, temporarily at least, the sphere ~f practical politics" (Clifford Sharp, The ~ase Against the Referendum, Fabian rract 155, 1911). ·n 1975, probably in June if the timetable t.llows, this country will witness its first 1ationwide referendum ~arold Wtilson, ~3 January 1975). This is tJhe final mtcome of the Labour Party's con- ingent commitment to the referendum : :..abour's 1973 Programme for Britain >romised that the next Labour Govern- nent " would immediately institute rene- ~otiation of the Treaty of Accession to he European Communities (and) would nsist that the people of Britain then lecide on the course of Common Market >Olicy through a consultative referendum >r a further genera·l election". This com- nitment was reaffirmed at the 1973 Party ~onference and in the February and )ctober 1974 election manifestos. ro many people, a Labour Party commit- nent to the referendum will seem surpris- ng. Some of them wiH recaH Attlee's 'orthright views on the subject when, in ~ay 1945, Churchill proposed a referen- ium on whether the life o.f the wartime >arliament should be prolonged. Attlee ·eplied : " I do not think that it would >e right or possible to Qbtain from Parlia- . nent another prolongation of its life. I :ould not consent to the introduction into mr national life of a device so alien to 11 our traditions as the referendum, which Las only too often been the instrument 1f Nazism and Fascism. Hitler's practices 1n the field of referenda and plebiscites f;an hardly have endeared these expedients o the British heart" (Times, 22 May945). t may be that the referendum has more , ; aerit ·than A'ttlee saw in it, and in the 1ages lthiat follow we try to explore the "f ·ntire range {)f likely results, good and •ad, of adopting the referendum in S1lri'tain. But ·before we do this we must ~ok at ·a view which ~s .in a sense quite ·' lttferent f·rom !both tJhe Attlee view and hat of the referendum's most ardent .dvocates. According to this, the referen- dum in particular and constitutional issues in general do not matter very much. It would foU.ow that •a party commitment to the referendum would not be a matter of ~principle but merely of tactics. In :that event there 1Wou1d 1be little .point •in givingthe ·referendum careful and serious a'bten- tion. Such attention would only serve to inhibit the freedom .of politicians to offer the refe.rendum when tactics seem to require it and to ·abandon it when Vhey suggest something else. In our view, however, it is this sort of excessive and cynical attention to political tactics that has contributed a grea:t deal to the present distrust of politicians. We hold strongly to the belief that constitutional changes matter a great deal, and feei such changes should only be made when they are seriously thought to offer an improve- ment-a general and lasting improvement -over what was done before. If the constitution is changed in response to every new tactical situation, its provisions may be as transitory as tod'ay's newspaper headlines. In contrast, a single ili-thought out change, adopted in haste, may do a great deal of damage before sober judge- ment ca:tches up with impulsive action. It is particularly necessary to bear in mind that constitutional changes may have serious consequences beyond those in- tended or foreseen by their proposers : in this country Anthony WedgwoodBenn's success in renouncing his peerage helped to make the Earl of Home Prime Minister. In short, we have no sympathy whatever with the view that constitutional ·changesdo not matter, or matter only in the twilight world of political tactics. The Labour Party's commitment to the refer- endum should be challenged or supportedin the recognition that basic constitutional principles-and political realities-are at stake. If Britain adopts the referendum, it maydo so in order to register popular senti- ment towards the Common Market. But the wider result is likely to be a new way of deciding or "consulting" on a greatvariety of major political issues. Today introduction ' The proposal to establish the referen- ·lum in this country seems to have :ntered, temporarily at least, the sphere ~f practical politics" (Clifford Sharp, The ~ase Against the Referendum, Fabian rract 155, 1911). ·n 1975, probably in June if the timetable t.llows, this country will witness its first 1ationwide referendum ~arold Wtilson, ~3 January 1975). This is tJhe final mtcome of the Labour Party's con- ingent commitment to the referendum : :..abour's 1973 Programme for Britain >romised that the next Labour Govern- nent " would immediately institute rene- ~otiation of the Treaty of Accession to he European Communities (and) would nsist that the people of Britain then lecide on the course of Common Market >Olicy through a consultative referendum >r a further genera·l election". This com- nitment was reaffirmed at the 1973 Party ~onference and in the February and )ctober 1974 election manifestos. ro many people, a Labour Party commit- nent to the referendum will seem surpris- ng. Some of them wiH recaH Attlee's 'orthright views on the subject when, in ~ay 1945, Churchill proposed a referen- ium on whether the life o.f the wartime >arliament should be prolonged. Attlee ·eplied : " I do not think that it would >e right or possible to Qbtain from Parlia- . nent another prolongation of its life. I :ould not consent to the introduction into mr national life of a device so alien to 11 our traditions as the referendum, which Las only too often been the instrument 1f Nazism and Fascism. Hitler's practices 1n the field of referenda and plebiscites f;an hardly have endeared these expedients o the British heart" (Times, 22 May945). t may be that the referendum has more , ; aerit ·than A'ttlee saw in it, and in the 1ages lthiat follow we try to explore the "f ·ntire range {)f likely results, good and •ad, of adopting the referendum in S1lri'tain. But ·before we do this we must ~ok at ·a view which ~s .in a sense quite ·' lttferent f·rom !both tJhe Attlee view and hat of the referendum's most ardent .dvocates. According to this, the referen- dum in particular and constitutional issues in general do not matter very much. It would foU.ow that •a party commitment to the referendum would not be a matter of ~principle but merely of tactics. In :that event there 1Wou1d 1be little .point •in givingthe ·referendum careful and serious a'bten- tion. Such attention would only serve to inhibit the freedom .of politicians to offer the refe.rendum when tactics seem to require it and to ·abandon it when Vhey suggest something else. In our view, however, it is this sort of excessive and cynical attention to political tactics that has contributed a grea:t deal to the present distrust of politicians. We hold strongly to the belief that constitutional changes matter a great deal, and feei such changes should only be made when they are seriously thought to offer an improve- ment-a general and lasting improvement -over what was done before. If the constitution is changed in response to every new tactical situation, its provisions may be as transitory as tod'ay's newspaper headlines. In contrast, a single ili-thought out change, adopted in haste, may do a great deal of damage before sober judge- ment ca:tches up with impulsive action. It is particularly necessary to bear in mind that constitutional changes may have serious consequences beyond those in- tended or foreseen by their proposers : in this country Anthony WedgwoodBenn's success in renouncing his peerage helped to make the Earl of Home Prime Minister. In short, we have no sympathy whatever with the view that constitutional ·changesdo not matter, or matter only in the twilight world of political tactics. The Labour Party's commitment to the refer- endum should be challenged or supportedin the recognition that basic constitutional principles-and political realities-are at stake. If Britain adopts the referendum, it maydo so in order to register popular senti- ment towards the Common Market. But the wider result is likely to be a new way of deciding or "consulting" on a greatvariety of major political issues. Today the EEC, tomorrow ·independence for Scotland and Wales, thereafter hanging and flogging. If the referendum is a useful device, we can be quite sure that its usefulness will be realised and exploited outside, as well as within, the Labour Party. And there is certainly nothing reliably left wing, or even " progressive " about referendum results, as can be seen from chapter three. Nevertheless there is great concern across the political spectrum, and recorded m·ost recently in the Kilbrandon Report, about the shortcomings of our political system, particularly the rem·oteness and lack of responsiveness on the part of those who govern and the very limited ·opportunitiesfor the governed to make their views felt. Some of the current interest in the referendum may derive from •that concern. If such concern is weH-founded, then there is every ·rea:Son for looJQing at the whole range of possible remedies available, includ~ ng primary •elections, more .frequent general elections, different voting systems, devolution, and the prospects of loosening the iron grip of the party machines. Some of these points are taken up in chapter five. All these possible remedies need to be looked at very carefuHy. We have focused on the referendum because that is the constitutional change to which Labour i committed. We oppose it not because it is a change but because we believe it drawback far outweigh its advantages. 2. the referendum in theory Our system of government is widely criticised for being unre ponsive, for putting · too great a distance between governor and governed, and for giving ordinary people too little opportunity of havingtheir views made known and taken into account. This weB founded criticism was made by the Kilbrandon Commission, as well as many other individuals and groups (Royal C01runission on the Constitution, HMSO, 1973; see a·lso \Voodrow Wyatt, Turn against Westminster, 1973). Given this view, the referendum might appear to offer a relevant solution. It clearly pro , vides an opportunity for the voters to make their views known (and possibly heeded) and it ought to narrow the gap between governors and governed, and to make the system more responsive. As Dicey put it : "Under the referendum an elector may begin to find it possible to vote for or against a given law in accordance with his real view as to its merits or demerits, without being harassed through the knowledge that if he votes against a Jaw which his conscience and his judgment condemns, he wiU also be voting that A, whom he deems the fittest man in England to be Prime Minister, sha:ll cease to hold office, and that B, whom the elector happens to distrust, shall at once become Prime Minister" (Law of the Constitution, 8th edition). Probably it is easier to see the likelyadvantages of the referendum in relation to a specific issue. To take the obvious example, the question of whether this country stays in the Common Market or leaves it, is clearly a very important one and whatever the answer, it should no doubt enjoy what Ted Heath caHed " the fuH-hearted consent" of the British people. The most direct and specific way to •get such consent would appaTent!ly be to ask the electors about that single issue in a special vote. Unless the Common Market decision is the only one 'for which the voters' full- hearted consent is needed (an errgaging•ly single minded view), it fol'lows that everydecision of a cer:tain magnitude-which must somehow be defined-will nece sadly be put to a special vote. Indeed, the most enthusiastic supporters of the refer endum have felt that there should be provisions for referring any i ue to a special vote of the people. But whether the use of the referendum is frequent or infrequent, the attraction is not only that the wishe of the people are registered, but al o that there is (or should be) no doubt as to how they feel about the i ue submitted to them. In contrast, the trouble with a general election is that though the people are consulted their wi hes may be far from clear, since some are voting to protestagainst the cost of living, some to show their support for the Prime Mini ter, and . o on. rn theory, then, the referendunl i a democratic device, and it appears to have the further advantage of predsion in posing and answedng que tions about what the voters want. These, then, are some of the general and particular advantages which the referendum would be thought to offer. Are theyenough to warrant the introduction of the referendum into Britain ? So far as this country is concerned, the effects of using the referendum at the national level can only be guessed at. However, there is no reason why the guess should not be an informed one. The best source of information is the experience .of other countries, and this is what we have looked at in the following chapter. Clearly, any British use of the referendum would not be exactly like that of t:he Australians or the Swiss. Each country bas a total political environment from which institutions, like some local wines, cannot be exported without losing something of their characteristic flavour. Nevertheless, it would not be sensible to expect that this country would escape all the problems and benefits of operating the referendum which other countries have encountered. It will be seen that we have so far assumed that there is no British experience of a referendum at national level. This assumption, which hardly seems controversial, is chaHenged by PhilipGoodhart (Conservative MP for Becken ham) in his book Referendum (TomStacey, 1971). "The idea of a referendum " he says " may not have been born in Great Britain but it has certainly lived here long enough to ola:im naturaiisation as of :right." He goes on to dis·cuss past occasions when adoption of the referendum was urged lby prominent {and almost invari~bly Conservat1ve) politicians. In substance these occasions amount to three. One was the 1945 ChurchiU proposal forcefully rejected by Att:lee, mentioned in chapter one. Another was the adoption by the Conservatives of " the idea that any important Bill which was passed by the Comm·ons but defeated in rhe House ·Of Lords should be submitted to a referendum." This proposal was conceived in the crisis following the House of Lords' rejection of Lloyd George's 1909 Budget in which, of course, the Conservative majority in the hereditary House defied the elected majority in the Commons. That crisis ended in the curbing of the Lords by the Parliament Act of 1911. (The possibility of using the referendum in the event of clashes between the two Houses was further considered, and rejected, lby the Conference on the Reform of the Second Chamber, in 1918. One reason for the rejection was that the referendum " could not be confined to the cases for which .it was in this instance proposed " and " that it might tend ·to lower the authority and dignity of Parliament "-Emden, The People and the Constitution, 1956.) The third occasion was in 1930 when Baldwin announced that the Conservatives would hold a referendum on the introduction of Empire Free Trade if this meant putting a tax on food (Goodhart, op cit). l't need hardly be added that none of these proposals led to a permanent commitment to the referendum, let alone to its actual use. One would have thought that these examples-each with a hint of drowning men clutching at straws-would offer little encouragement to Conservatives (to say nothing ·Of the Left) but curiously enough Goodhart does not draw this inference. On the contrary he approvesthese words of Balfour's from the final debates in 1911 on the Parliament Bill : "In the referendum lies our. hope· of get-· tirrg the sort of constitutional securitywhich every country but our own enjoys. . . . I am convinced that whatever is done now . . . before very long, and practically in the lifetime of aH of us, we may see this great democratic engine brought into practice." Just what constitutional security countries using the referendum enjoy, and what sort of " great democratic engine " the referendum has proved to be, are questions to which we now turn. 3. the referendum 1n• practice " The word Referendum is a foreignexpression derived fr01n Switzerland " (Dicey, Law of the Constitution, 8th edition). Switzerland We begin this discussion of the use of the referendum in other countries with the Swiss experience. We shaH look at the compulsory constitutional referendum and the legislative referendum (and in passing at the initiative). Switzerland is a good place to start because it has experienced a uniquely extensive-and intensive -use of the referendum. extent and frequency of use Switzerland was the only member of the League of Nations to ask for the specific approval of the voters before joining. The country's free trade association agreement with the EEC was put to the voters at the end of 1972. Its modern constitution of 1848 and the substantial changes to it in 1874 were also approved by referenda. Furthermore, many much less momentous issues, whether at the federal level or within the individual cantons have been put to the voters over the last century and a quarter. At the federal level, to which we confine our attention, some 200 referenda have been held since 1848. Over the last hundred years (since the constitutional changes of 1874) the frequency of referendum use has increased from an average of 1t a year in the last quarter of the 19th century to almost 3 a year in the period since the second world war. Curiously enough, weariness a1nong the voters is not very pronounced ; the average turnout in the 1950s was just over 50 per cent. Clearly, there is a great dea'l of Swiss experience to draw on. Nevertheless we deal with it quite 'briefly because, for special and indeed unique reasons which we examine .below, we think its relevance to our present concerns is limited. A po'int which should be constantly kept in mind is that the context in which the referendum i used matters a great deal. In Switzerland it 1is one of many politicalhabits that over time have proved themselves helpful in dea:ling with the special circumstances of SWiss history and politics. For example, the civic harmony of Switzerland is remarkable in view of the religious and linguistic differences to be found among its population. In the past, these differences, and particularly Catholic-Protestant divisions, gave rise to bitter conflicts. Even today, harmony is something to be worked at carefully and constantly. A major contribution is made by the Federal Council-the government of seven members elected by the Federal Assembly or Parliament. Its membership is drawn from all the majorparties, including Radicals, Conservatives and Social Democrats. This form of stable, multi-party coalition government is one Swiss means-the referendum is another-of making sure that the governors and the governed do not get significantly ·out of step. In Switzerland suoh harmony is not just desi,rable ; it may be a sine qua non of national survival. procedure Since 1848 the use ·of the referendum has been compulsory for any changes to the Swiss constitution. Proposed changes usually go to the voters from the two Houses of the Federal Assembly. For a change to be approved a majority of all voters and a majority of the cantons is needed. But the voters are not compelled to wait for is·sues to be put to them : they have the right of popular constitutional initiative, which means that, provided at least 50,000 voters can be found to sign a petition, the voters can themselves propose an amendment. This can be done in the form of either a detai·led draft amend1nent or a statement of principle which the legislature then converts into a specific draft before it is finally referred to the voters. In 1874, when the constitution was revised, an additional form of referendum was introduced M the federal level. This was lthe legislative referendum. ks a result (~with some exceptions) laws passed by the Federal Assembly (the Swiss Parliament) and major treaties can be challenged by the voters. If within 90 days of the publication of the law a petition is signed by 30,000 voters, the law must be put to a referendum : if a simple majorityof voters vote no the law js rejected. (Exceptions to this rule occur with legislation which is not " of general application " or which is " of an urgentcharacter " ; these phrases bave been interpreted as excluding from the referendum the budget and some treaties. The net result is, as Michael Stewart says, that " for all major changes of the ordinary law, the Swiss people may have a referendum if they wish " M odern Forms of Government, 1964) results and conclusions The results have been cautious, conservative and frugal. They showed the Swiss people "to be anxious for l'iberal political rights, severe to murderers, unfriendly to centralisation, in favour of ta·riff duties, occasionally anti-Semitic, a drag on state activity in the control or management of industries, supporters of domestic virtue ... steadily austere ... in relation to the payment of public officials, and unenlightened regarding public health ' measures" (Herman Finer, Theory and Practice of Modern Government, 1962). Probably the most striking example of conservatism has been the question of votes for women. As late as 1959 the (male) Swiss voters decided by a two-toone majority that women should not have the vote. It was not until 1971 that women were allowed this most basic of political rights. the USA Thus the Swiss experience of the referendum is not an especially heartening one from the progressive standpoint. What ought, however, to make other count·des stiU more cautious about imitating it is an awareness of the special habits and needs of Swiss politics, where wide consent, and not merely majority approval, must constantly be looked for, and be seen to have been given. Though they are surpassed in this respect by the Swiss, the Americans have a strong faith in decision making by popular vote. That faith is evident both at the national level, notably in presidential elections, and at state and local level, where a greatnumber and variety of offices are filled by elections held at regular and frequentintervals. In the heyday of the " Progressives" (from the 1890s -to the first world war) the agenda for political reform included not only the " petition " referendum, but also the initiative, primaryeleotions and the recall. (Some 20 states ,jn the USA make use of the initiative : the recall, aVIail:able in 14 states, allows the removal of a public official from office : a percentage of voters can petitionthat a public official be removed and a new election held). All these devices were adopted in at least some states, and indeed the primary election (though many states do not use it in choos·ing presidential candidates) has become a standard feature of Amerkan political life. And while few Americans now feel as enthusiastic about submittingdecisions to the voters as the Progressives felt 70 years ago, never-theless the habit of Jetting the voter decide is far more marked ·in America than in the UK. extent and frequency of use The referendum is, of course, only one way of letting the voter decide and. despite its widespread use at' state and local level , the device is not used, and has never been used, at the federal 'level for a nation wide vote. It is however used by every state for approving or rejectingamendments to the state constitution. Roughly three fifths of ·the states, mostly wes·tern or mid-western, use the referendum for other purposes. In states and loca·litlies which us·e the referendum (other than for amending the constitution) the normal practice is for it to be combined with the general elections (which are of course, unlike British elec tions, held at fixed and regular intervaL). This 1neans that the referendun1 que - tions-there may be only one, there maybe a great many-are simply added to the .election ballot paper. context and procedure The referendum in America should be een in its particular historical and poli- tical context, which is one where great emphasis is placed on choice by the voter. Of particular relevance is the old Ameri- can practice of adult male suffrage (a rather less venera'ble institution in thi country) which, though it wa not avail - able to Southern b1ack , has been accepted for virtually 150 years. The Americans use their vote more often than most Europeans : the entire federal House of Representatives is elected every two years, the President every four years, and a wide range of tate and local officials at intervals not usually exceeding four years. Given first this frequency of voting and secondly the complete absence of the referendum from federal politic and from questions of choo ing, endors- ing or rejecting the President, it ha scarcely been possible for an Amerkan referendum to matter as much as any of the French votes discussed later in thi chapter or as much as a future Engli h referendum on the EEC. On the other hand, the American voter proba'bly has much more continuous influence on those who govern than have the voters of France or Britain. In particular, the primary elections tend to prevent anyelected official from treating his con ti- tuency as a sinecure (for example, a Democraric Senator may be ecure again t any Republican challenge but, like Senator Fulbright, vulnerable to a rival for the Democratic nomination) and the Presi- dent himself must win his party's nom'ina- tion as well as the general election. In short, the American voter has real, signi- ficant and frequent choice to make. If the referendum is among them it will . usually occupy a modest place in the hier- archy o'f choices. Each type of referendum has its charac- teristic procedure. There are three main 7 types : the compul ory, the legislative and the petition (the advisory referendun1 is used only in Wisconsin) (Penelope J. Gazey, "Direct Democracy-A study of the American Referendum ", Parliamen- tary Affairs Volume 24 number 2, 1971). The compulsory referendum has the longest continuous history. As early as 1777, the con titution of Massachusetts was changed following a proposal of the tate legi lature which was ubmitted to and approved by the voter (Gazey, op cit). The compulsory referendum is also the most widely used. Every tate is required to ubmit new constitutions and con titutional amendments to the special vote of the people. The proposed change is formulated in some states by the legis- lature, in orne by a special1ly summoned constitutional convention, and in some by means of the initiative. But whichever me~hod is used, the verdict of .the voters in a referendum is the crucial element. Compulsory referenda are used in some states for additional purpose , such as seeking popular approval for new state bond issues or for establishing a state bank. The legislative referendum (which was introduced in some state in the middle of the }ast century) is now a constitutional feature of some 13 states. There the tate legislature decides whether or not to submit a particular law to the people's vote. Those so submitted are typically controversial measures, and ·often those on which the legislature is closely divided or on which the two hou es of the legis- lature take different sides. The measure referred may be added to the ballot at the next general election, or it may be dealt with in a pecia1 vote (Gazey, op cit). The petition referendum is used in 23 states. This device gives a specified mini- mum number of voters the power to compel the legislature to submit a desig- nated l'aw to a popular vote. The specified min·imum varies from 7,000 in North Dakota to Nevada's 50 per cent of the registered voters in the last general elec- tion (ibid). Petition forms identifying the tions, held at fixed and regular intervaL). This 1neans that the referendun1 que - tions-there may be only one, there maybe a great many-are simply added to the .election ballot paper. context and procedure The referendum in America should be een in its particular historical and poli- tical context, which is one where great emphasis is placed on choice by the voter. Of particular relevance is the old Ameri- can practice of adult male suffrage (a rather less venera'ble institution in thi country) which, though it wa not avail - able to Southern b1ack , has been accepted for virtually 150 years. The Americans use their vote more often than most Europeans : the entire federal House of Representatives is elected every two years, the President every four years, and a wide range of tate and local officials at intervals not usually exceeding four years. Given first this frequency of voting and secondly the complete absence of the referendum from federal politic and from questions of choo ing, endors- ing or rejecting the President, it ha scarcely been possible for an Amerkan referendum to matter as much as any of the French votes discussed later in thi chapter or as much as a future Engli h referendum on the EEC. On the other hand, the American voter proba'bly has much more continuous influence on those who govern than have the voters of France or Britain. In particular, the primary elections tend to prevent anyelected official from treating his con ti- tuency as a sinecure (for example, a Democraric Senator may be ecure again t any Republican challenge but, like Senator Fulbright, vulnerable to a rival for the Democratic nomination) and the Presi- dent himself must win his party's nom'ina- tion as well as the general election. In short, the American voter has real, signi- ficant and frequent choice to make. If the referendum is among them it will . usually occupy a modest place in the hier- archy o'f choices. Each type of referendum has its charac- teristic procedure. There are three main 7 types : the compul ory, the legislative and the petition (the advisory referendun1 is used only in Wisconsin) (Penelope J. Gazey, "Direct Democracy-A study of the American Referendum ", Parliamen- tary Affairs Volume 24 number 2, 1971). The compulsory referendum has the longest continuous history. As early as 1777, the con titution of Massachusetts was changed following a proposal of the tate legi lature which was ubmitted to and approved by the voter (Gazey, op cit). The compulsory referendum is also the most widely used. Every tate is required to ubmit new constitutions and con titutional amendments to the special vote of the people. The proposed change is formulated in some states by the legis- lature, in orne by a special1ly summoned constitutional convention, and in some by means of the initiative. But whichever me~hod is used, the verdict of .the voters in a referendum is the crucial element. Compulsory referenda are used in some states for additional purpose , such as seeking popular approval for new state bond issues or for establishing a state bank. The legislative referendum (which was introduced in some state in the middle of the }ast century) is now a constitutional feature of some 13 states. There the tate legislature decides whether or not to submit a particular law to the people's vote. Those so submitted are typically controversial measures, and ·often those on which the legislature is closely divided or on which the two hou es of the legis- lature take different sides. The measure referred may be added to the ballot at the next general election, or it may be dealt with in a pecia1 vote (Gazey, op cit). The petition referendum is used in 23 states. This device gives a specified mini- mum number of voters the power to compel the legislature to submit a desig- nated l'aw to a popular vote. The specified min·imum varies from 7,000 in North Dakota to Nevada's 50 per cent of the registered voters in the last general elec- tion (ibid). Petition forms identifying the measure to be referred are issued by the State government and circulated locally. Signatures on the forms must be cerWied as genuine. When sufficient signatureshave been dbtained and authenticated, the measure is put before the voters, usually at the next general election, though in some states there is provisionfor ho1lding a special election. results It is difficult to generalise about or to summarise the vast number of referenda held in the states and local communities (the nationwide total may be as high as 15,000 a year. See Howard D. Hamilton. " Direct Legislation : some implicationsof open housing referenda ", American Political Science Review, March 1970). The general-and nat v·ery startling- reluctance of the voters to accept tax increases is certainly quite clear. In Ulinois, for example, consistent attempts to enlarge the tax base for almost 25 years were uniformly unsuccessful. By contrast, bond issues have enjoyed a more favourable reception. This may be due, as Gazey suggests, to "some feeling that the cost will be borne by the next generation". More generally, the use of the petition referendum has tended to be conservative in its results. Petition campaigns, which are usually won by those launching the petition, are ch(l!racteristicaUy aimed at preventing either increases in state governmental powers and responsibilities, or increases in taxation. But it .is difficult to see a clear conservative trend in the use of the referendum as a whole (there are no signs at an of a leftward trend). SimHarly, if one looks at particular controversial issues whioh have been put to the voters in recent years, there are results to hear:ten li·berals and resu[ts to encourage the Right. In 1964 the voters of California were asked to mark their (enormous) ballot papers so as to record 30 decisions including their choice for Pres'ident of the United States and their verdidt on 17 referendum "propositions ". One of these " prohibited state or local governments from limiting an owner's right to sell or rent residential property- in effect it repealed acts of the legislaturewhioh had been designed to halt racial discrimination in housing " (John E. Mucl·ler, "Voting on the Propositions : ballot patterns and historical trends in California," American Political Science Review, December 1969). It was approvedby a massive 65 per cent majority of the voters. (Hamilton, op cit, notes that between 1963 and 1968, ten cities, as well as the state of California, conducted such " open housing " referenda. " AH were initiated by ropponents who utilised the referendum provisions of city charters or state constitutions in an effort to cancel open housing legislation by vote of vhe sovereign electorate. In some ·communities the petition drive was a pr·oject of John Birch Society activists. The strategyof nuHifying the public poJticy set by the processes of representative democracyworked consistently until 1968. Indeed, until the surprising victory of one cityordinance in February 1968, by a paperthin margin on a recount, it appeared that , open occupancy could never win at the pol·ls ".) On the other hand Governor Ronaid Reagan's attempt to freeze the level of state taxation (and to protect the ·better-off) was turned down in 1973. As we have seen, referenda are not used in the usA for national, and hence the most crucial, .issues. Presidential and Congressional politics are conducted without help or hindrance from the referendum. But in those states where the referendum is used for purposes add.itiona•l to amending the state constitution, it is a familiar device, fully assimilated into the citizen's voting habits. In those circumstances there .is some protection, probably a great deal, against stampeding the voters with the novel exC'itement of a special isolated vote on a matter of hot controversy. Indeed, voter excitement is far from being typical of American referenda, particularly at local level. " Although voting rates for local referenda fluctuate considerably, 'turnout is rarely h·igh and occasionally below 10 per cent" (Hamilton, op cit). What determines the size of the poH is the significance of the concurrent election (if any). In 1967 the city of Toledo, Ohio, held an " open housing" referendum which was separated from pres·rdential and state elections. 36 percent of the electorate voted-and heavilydefeated open housing-but at the subsequent city election the turnout was 44 per cent, and at the 1968 presidentialelection, 80 per cent. " Ev-idently referenda alone, even on critical issues, wiJl not move mo t · people to the polls " (ibid). This difference in turnout is not simply a matter of numbers ; the nonvoters include a di proportionate number of the less well-off and the less educated. In short, because of low turnouts, " local referenda are likely to have more class bias than major eiections " (ibid). If a huge electorate like that of California (the largest state in terms of p·opulation) is thought 'to provide more significantexamples of refendum voting, then no dear political lessons emerge. The voters of California are markedly inconsistent, as could be evidenced, from 1966 to 1970, by their cho'ice of a conservative Governor (Reagan) and two li'bera1 Senators (Cranston and Tunney). In over 60 years of experience with the referendum, they have shown sim.ilar whimsicality or-it may be thought-a wish to hedge their bets. The sto,ry is cert'ain'lynot one of disaster, but neither is it one which suggests that those voters who do not have the referendum are pol'iticallyunderprivileged. France In the postwar years no country has used the referendum so controversially as France. The Fifth Republic of De Gaulle arrd Pomp.idou repeatedly looked to the referendum for answers to major political questions (though not a1ways to the question on the ballot paper). extent and frequency of use The referendum was, of course, a favourite poli'tica·l device of General de GauBe. It had also been extensively used by the two Napoleons as 8 means of ratifying imperial decisions. In fact its use by Napoleon III aroused great controver y-as even De Gaulle himself admitted-so much so that the description " plebiscite ", which was then the normal usage, itself became discredited. (The communists constantly referred to the 1958 referendum as le referendumph~ biscite. The essence o.f the earlier complaint against the plebiscite was that it did not provide, nor was intended to provide, a real ohoice. A Napoleonic plebiscite in effect asked the voters : "Do you approve of me ? Bear in mind that even if you say No, I will sti11 be in control of your destiny".) De pite this not very encouraging experience, the Third Republic was pronounced dead, and the Fourth RepubJ1c was born, a a re ult of referenda held in 1945 and 1946, and De Gaulle's constitution for the Fifth Republic was approved by referendum in 1958. Aifter that (and in this ection we shall f~ocus on the Fifth Republic) the use of the device has been more polit'ically complicated. The constitution seems to indicate that the referendum is to be used to settle the basic questions concerning the organisation of the state : constitutional amendments, changes to the machinery ·of national and local government, treaties which would affect domestic poLitical institutions. We return below to the specific constitutional provis-ions concerning the refe·rendum, but at this stage we simply note that in practice it has been the President (whe'ther De Gaulle or Pompidou) who has determined when, and for what purpose, the referendum has been used. De Gaul·le's inclination was to ask for the voter's approval of himself, as well as for their answer to the specific referendum question. Pompidou was more prudent but perhaps not p·rudent enough. In the first 15 years of the Fifth Republic, six referenda were held : 1958 : to approve the new Constitution; 1961 I 1962 : to endorse De Gaulle's A1gerian policy ; 1962 : to vote on De Gaulle's proposa'l that the President should henceforward be elected by direct popu'lar vote (the Constitution orig'inallyprovided for, and De Gaulle was first elected by, an "Electoral College") ; 1969 : to vote on plans for strengthening regiona~ government and for reformingthe Senate (as De Gaulle threatened to resign if the vote was hostile, he turned the referendum into a vote of confidence ; the vote rwas hostil.e and he resigned) ; I 972 : to approve the enlargement of the EEC (that was the question which was formally put to the voters. The one they preferred to answer and the one Pornpictou was, obliquely but deliberately, raising was " do you approve of the Government? ". The answer was sufficiently negative to confirm that P1ompidouhad been wise not to stake his survival on the outcome). context and procedure Since its first great Revolution, France has experimented with both parliamentary regimes and personal rule. It would be misleading to suggest that the Fifth Republic was a form of personal rule similar to that of Napoleon III. It i , rather, in essence a presidential regime, and in practice the most important choice the French voters make is that of President. 11hat has been true since 1958 when the Fourth Republic, total'ly unable to solve the Algerian conflict, col'lapsed. General de Gaulle emerged from retirement as the one man acceptable to most of France and white Algeria. De Gaulle was given almost complete freedom to write his own constitution. He took the opportunity to end the unstable rule of parties and factions and to substitute a stronger, more durable and of course more personal form of government. For at Jea t as long as De Gau1le was indispensable- and in 1958 it was difficult to rega:rd him as anything less-his political ideas and techniques would be accepted by the French people. The referendum, or more exactly De Gaulle's use of it, was a key technique. 11he second major choice the French voters make is that of the lower house of parliament, the National Assembly, which has a maximum life of five years, but can be dissolved premature'ly. The Gaullists, with or without their allies and sympa thisers, have controlled the National Assembly for almost the whole of the period since 1958. The 1973 general election, though it produced substantial gains for the alliance of Socialists and Communists, left the Gaul'lists and their supporters in control. Looking at the political reality, however, we see a President with the real power aad a National Assembly which, though it is far from powerless, has s·o far submitted to the President ~in every majorconflict. Furthermore, it was the referendum which, at any rate during the first four years of De Gaulle's rule, gave the President a peculiarly effective means of undermining the National Assembly. The relevant provisions of the French Constitution are Articles 11 and 89. Under Article 89, the referendum is in France one of two possible procedures for amending the Constitution. Under Article 11, provi'Sion is made for certain parliamentary bjlls to be submitted to referendum. The Constitution envisages that the President wiH not initiate, though he may refuse, a referendum. The reality has been that the decision to hold or withhold a referendum has been taken by the President, who has als·o had the means of deciding the detai'led arrangements for each vote. Some examples are given below. results and conclusions Two kinds of issue have been put to a referendum during the life of the Fi.flth Republic. First, issues concerningthe life and death of the Republic. Its very birth was secured bythe referendum of 1958, in which the French voters overwhelmingly approved the new conseitution. Its continued survival was threatened by the Algerian War and the political crises ass·ociated with it. The referenda of 1961 and 1962 not only helped to end the war, but to finish off politically the extremists of the Right by demonstrating massive support for De Gaulle's settlement. Second, there are the issues which have significant consditutional or political effects, but do not in them elve affect the survival of the regime. Examples of this include the 1962 referendum on changing the method of elect·ing the President, the 1969 vote on regional and parliamentary reform, and t!he 1972 verdict on the EEC's enlargement. The contrast, however, i much more apparent than real. De Gaulle turned the 1962 and 1969 ·referenda into votes of confidence. This 1nay have been against the spirit of the constitution but at least he had the courage of his commitment and (as we have seen) resigned once that confidence seemed to have been withdrawn. Even the 1972 referendum, which Pompidou did not formaUy or openly treat as a confidence vote, was clearlysomething more than a tak•ing of the popular temperature on the EEC ; whatever the referendum was about, it was manifestly not about the quesbion on the ballot paper. For Pompidou, the referendum seems to have been a temptingopportunity to divide the opposition : they for their part saw it as a chance to regis-ter disapproval of the government, certainly by voting NO, but more effectively by staying away from the polls. The meaning of 1958-72 results is not easy to set down, but certain thing are clear. Firstly, every referendum wa initiated by the President (or, in 1958, the President-presumptive). Secondly, one referendum, that of 1969, resulted in a nar.row but deci ive de:feat for the President. Thirdly, the 1972 result was technically a victory for Pompidou, though in substance a defeat. And fourthly, the results of the 1958-1962 referenda were all highly satisfactory to De Gaulle. In the Fifth Republic's use of the referendum in France, it is very hard to see evidence of a healthy democracy at work even in the results that might widely be regarded as beneficial to France. One might well see the Algerian referenda, and perhap the 1958 vote ~oo, as contructive developments. But in those votes the very survival of the Republic was at take, and the fact that the voters cho e survival is unremarkable. Nor does it seem obvi·ou ly desirable or efficient to get rid of (or for that matter endorse) a Pre ident through a vote on regional and parliamentary reform, or on changes in the EEC. But it is the 1962 referendum on direct election of the President which is the most difficult to reconcile with democratic practice. First, De Gaulle put that referendum di-rectly to the peopl'e, instead of puttingit to Parl'ian1ent first, as the constitution required. Second, he was attempting to change the rules in his own favour halfway through the game. And •although opposition politicians pointed these thing out, their reaction was portrayed a , " either the familiar incomprehensible qu'ibbling of professors of law or the politicians' self-interested defence of their claim to decide issues behind the ordinary voter's back" (PhiHip M. WiHiams, French Politicians and Elections, 1970) The Government made sure that this view would prevaiL They did so by means of a thorough and expensive propaganda campaign. French radio and television were, for practical purposes, government controlled, and the admirably objective outside stations like Luxembourg could not redress the 1balance. 'Jlhere are als·o more general points to be made. The first concerns the possibilities of abuse-or alternatively, De Gaulle's ingenuity in bending the rules in his own favour. For exampie, in 1961 there wa much dispute over the referendum q uestion itself. The issue was Algerian selfdeternlina: tion, and the electorate was asked : " Do you approve the bill submitted to the French people by the President of the Republic and concerning the self-determination of the p·opulations of Algeria and the organisation of the public authorities in Algeria prior to elf-determ ·ination ?". Some of De Gaulle's opponents criticised the form of the question. Others simply aid that it was the wrong question (the right one being "Are you for negotiations with the FLN ? "). Another matter for criticism was that the o:ffi'Cia'l envelope sent to each elector "contained the question, ballot- paper -and a speech by President De Gaulle" (Williams, op cit). In 1969 the voters were formally invited to decide two issues (strengthening of regional government and reform of the Senate) and informally, but crucially, to decide a thivd (the political survival of D·e Gaulle). What is much more basic to the issue of the referendum's fairness, however, is the fact that the President held a referendum when he wanted ·one, and at no other time, and that nobody else held a referendum at any time, whether it was wanted or not. (The British P.rime Min!ister's power to call a general election at whatever !time (in the 5 year maximum) that suits him best is compara!ble. Like the referendum, it is a weapon that can fire the wrong way, as Harold Wilson discovered in 1970 and Edward Heath in 1974. But the French P~resident's referendum power gives still less scope to the Opposition or to free choice by the v·oters. At a general election, everyone ·and everything is (in principle) at risk. In a referendum there is no chance to vote for alternative men, and little, if any, chance to vote for alternative policies). One does not need to be totaUy cynical to suspect that most politioians are willing to consult the people at a time and on a question of their own choosing. The Fifth Republic institutionalised this willingness. To be sure, political judgement can be fallible, even that of De Gaulle or Pompidou, and the consequences may be unpleasant for the man who holds the wrong referendum at the wvong time. But to point out that a weapon is double edged is to offer, at best, only limited reassurance. Australia Of aU the countries making regular use of the referendum, the one with the closest ties to the UK, both of kinship and of parliamentary government, is undoubtedly Australia. Consequently that country's experience is particu[arly interesting and re'levant. The Commonwealth of Australia is a federation, founded in 1901, of six separate states (the terms " Commonwealth " and "Federal" are equivalent in the Aus traHan context and are used interchangeably here). extent and frequency of use Article 128 of the Commonwealth Constitution provides for the use of the referendum only in changing the constitution. Nevertheless referenda have been held on issues which do not fall wi{hin that category, for example the 1916 and 1917 referenda on conscription during the First World War; the 1933 vote on the proposed secession of Western Australia from the Comm·onwea:lth ; and the 1967 referendum on the proposed formation ·Of a new slate to be known as "New England." Provision for the use of the referendum is also made at state level in New South Wales in the event of a deadlock between the two state Houses of Parliament. This provision has never been used, and neither was a somewhat s·imilar pr·ovision which originally existed in Queensland but which lap·sed on aboHtion of the upper house there in 1922. From federation in 1901 up to 1974 Commonwealth referenda under Article 128 have been held on 32 occasions. There have been 'feferenda in every decade, although half were held in the first 20 years. Hence the sum total of constitutionally significant referenda of aH kinds, including the above four is 36. context and procedure The first formal stage in the building of the modern Australian state was the founding of the convict colony of New South Wales in 1788. During the next century five further colonies were founded, namely Victoria, South Australia, Queensland, Wes·tern Austra'lia and Tasmania ( origina!lly Van Diemen's Land). Responsible government was granted to all six in the latter half of the 19th century. Difficulties between the various colonies over intercolonial tariff barriers, problems in providing for the defence of the entire continent, and the need for coherent development of areas which did not fall neatly within colonial bounda:ries (such as the Murray River basin), led to a gradually increasing awareness of the benefits that would result from som·e form ·of national unity. A strong federa:l movement developed in the late 19th century, ultimately proving successful. In drafting a federal constitution, the founding fa:thers had to take account of ·a very strong and articulate opposition to the idea of a powerful central govern, ment ; there were many who thoughtthat federalism was only acceptable if the loss of sovereignty on the part of the new states was held to a bare m-inimum. In the result, the central government was granted only a restricted and specific list of . powers the undefined residue being left to the states. In consequence, the largest proportion of referen'dmn issues has been concerned with attemp'ts by the federal government (whatever its political com plexion) to enlarge its powers. The Constitution requires that if a propo'Sa: l is to be formally approved by the voters in a referendum, it must win an overaH majodty (a majority of aU those voting, nationwide) and a majority of votes in a majority of states. On certain issues, for example proposals to amend the powers 'Of the Senate or matters affecting the constitutional relaltionship between the federal government and an individual state, a majority is required in all states -or in that particular tate. A proposal for an amendment to the Constitution can originate only in one of the two federal Houses of ParUiament and must be approved by both Houses ; in pra·ctice this has meant that such a proposal must be government sponsored. In the event of continued deadlock over the proposal between the two House , the Governor General may submit the proposal to the electorate. Referenda are submitted in the form of "proposed laws." Each propo al maycontain one or more constiltutional amendments ; two or more proposals may be submi'tted concurrently. Referenda may be held sin1ultaneously with general elections or separately. Voting in referenda (as in parliamentary elections) has been compulsory s1ince 1924. The ballot paper carries 'Only the title of the proposed law; the full text is available at the pollingstation. results and conclusions Proposals under Article 128 : since federation in 1901, there !have been 86 clear attempts to initiate constitutional amendments (the figures are based on those of R. S. Parker and contained in a paperread to the 15th summer school of the Australian Institution of Pol,itical Science. They can be found in F. W. Oheshire, Federalism in Australia, 1949, and have been updated to include the referenda held up to and including 1974). Almost ha:lf of them were initiated by the federal government, including all those on which 1a referendum · was a:ctuallyheld. 54 of the 86 attempts lapsed or were defeated without being subn11itted to the voters; of the remaining 32 which were so submitted, 'Only 5 achieved the requisite n1ajorities and were eventually incorpora! ted in the Constitution. Following the classification adopted by Parker, we find that the 86 attempts at constitutional amendment encompassed some 120 subjects, of which 95 involved a request for increased federal legislative powers, 13 related to the machinery of government, 7 to the overhaul of the Constitution, 4 to state-federal financial relations, and one to the rights of aborigines. Measures a;pproved and subsequently incorporated in the Constitution have been as follows : (a) a change in the startling date of senatorial terms of office (1906) ; Cb) and (c) proposals concerning the responsibilities of s1tate and federal governments for loans and public debts (1910 and 1928) ; (d) the power to legislate for the provision of certain social services (1946-submiuted to referendum only after a High Court decision that had cast doubt on a power the government thought it already possessed); and (e) the granting of fuH citizenship to aborigines (1967-a proposal so overdue that the resuJ t approached unanimity as closely a might be considered possible in a free vote). It will be seen that despite the preponderance of " more federal powers " proposals only one succeeded in gainingacceptance, while despite the wide terms of Ar~icle 128 the only fundamental change attributable to it has been the setting up of the L'oan Council by the 1928 referendum decision (as a result of this change the federal government has become increasingly more powerful in financial matters). But, notwithstandingthese persistently negative results from the standpoint of the feder·al government, that government has gained considerably in power and authority as against the state governments owing 1partly to favourable High Court decisions, partly to usage, and partly to increasing federal dominance of the Loan Council. Other proposals : (a) the Federation Polls o'f 1898-1900 : two separate polls were held. Turnout was low and, although pro-federation votes were obtained in all states, the first poU produced affirmative votes from only 30 per cent of qualified voters and the second poll from only 43 per cent. Some difficulties were encountered in meeting the aspirations of the most populous state, New South Wales, but these were eventually overcome and federation was declared on January I, 1901 (b) the Conscription referenda 1916 17 : two pol·ls were held by Pnime Minister Hughe·s, who was determined to increase participa'tiun by Australian forces in the 1914-18 war. Both were, however, convincingly defeated, the second more decisively than the first (c) the Western Aus'tra11ian Secession referendum 1933. A move tu secede from the Commonwealth by Western Australia actually obtained a two to one majority of that states' votes. The result however at this time still required approval by the British Parliament in Westminster. Thi was not forthcoming and the affair was consequentlyignored and eventually forgotten (d) the New England State referendum 1967 : another form of secessionist ·movement by the mainly pastoral d1strict of New England in north east New South Wales, which sought separatron a an independent state wHhin the CommonweaHh , was decisively reject·ed 1n a local poll. Over the years there has been wide agreement about the need to expand federal powers. Nevertheless, constitutional changes designed to meet this need have frequently been the subject of an adverse referendum vote. This is not easy to explain, but the reasons are probably to be found amongst the following. · 1. The average Australian is notoriouslyapathetic about political matters. The prestige of politicians is low and it maybe that the voters resent being asked to make decisions on matters about which they know little and care less. ? Many referendum is ues have been raised because the party in power sought constitutional changes ~to assist it in carrying out a legislative programme. The opposition of the day, though it mighthave pursued the same changes had it been in power i1tself, has characteristically responded by opp'osing the changes, whether out ·of pol'itical opportunism or a too literal devotion to the maxim that it is the duty of an opposHion to opp·ose. As a result, most referendum issues have been fought on strict party lines. As Labour and the parties opposed to Labour have almost always been nearly equal in strength the vote has aJso tended to split nearly equally, wi'tlh the residue of uncommitted voters usually favouring the negative response (for the kinds of reason canvassed in (1) above). The five successful referenda aU attracted substantial support across pa·rty lines ; but a dramatic departure from loyalty to party, and its advice on how to cast one's referendum vote, came in the 1967 " nexus " referendum. Th'is was a prop·osal to change the relative s'izes of the House of Representatives and the Senate. The Constitution provides (Article 24) that the I-Iouse shall have " as nearly as practicable " twice as many mem'bers as the Senate. All the major parti~s agreed on the desirabilityof this measure, which would have taken account of population changes. But the disaffected, right wing, m-inority Democratic Labour Party opposed it in an unedifying campaign whi'ch sought to focus on the supposedly low prestige of politici- ans in Australia. The overwhelmingrejection of the proposal by the electorate was a disquieting indication that the Democratic Labour Party assessment was correct. 3. Geography and di tance tend to breed insulari'ty in parts of the country, and a consequent reluctance to entrust broau new powers to a remote federal parlia' ment. Moreover the pre s, which has r strong links with commercial radio and television networks, tends to form and reflect a parochial rather than a national cl'imate of opinion. So strong is the loca1 or provincial bias of the press that even anti-Labour federal governments, which can normally count on the support of these substantial private interests, have had to tread warily to avoid their opposition in referendum campaigns (L. F. Crisp, Australian National Government, 1965). 4. If a referendun1 proposal is to be approved it must, as we have seen, get over several difficult hurdles. It i , however, true to say that of the 27 proposals rejected in referenda, only three would have been approved even if the sole test had been a simple maj'Ority, and only one if such a test had been only a majority vote in a majority of states. In contra t, t1he Swiss electors, with si,milar requirements for approval by referendum, have approved some 50 amendments to their constitution in 70 years. 5. Over eagernes by various governments to win approval f'or tb.eir proposal has probably had some negative effect. Submission of more than one propo al at a time or of more than one que tion in a single proposal has apparently tended to push the voters towards rejection. 6. A proposed amendment must in practice originate with the party in powerand that party' supporters, although they would not stray far from the fold at a general election, can and sometimes do use t!he referendum vote to show their disapproval of government policies without, of cour e, putting t!he government at risk. The ix point considered above relate primarily to the Austral'ian experience, but that experience suggests sorne further points which are of more general interest in assessing the referendum. These are as follows. 1. Although the u e of compulsoryvoting since 1924 makes any tudy of voter turnout sine(.; then meaningle s, there is some evidence that before thi date referenda held separately attracted fewer voters than referenda held concurrently with general ele·ctions (R. S. Parker, Federalism in Australia, 1949). 2. Any referendum held concurrently with a general election tend to be overshadowed in the press and other media by that election. A clear example of this was afforded recently by the four concurrent referenda held in 1974 on the same day as a general election. 3. Of the five referendum propo al accepted, four were approved by all the tates (6-0) and the other by all except one (5-1). lt appears that for approval to be given at all, public opinion must very heavily favour the change, wh'ich probably means that it is long overdue. Anyfarsighted or adventurou proposal i likely to be foredoomed to failure and quite [ robably to crushing defeat. 4. According to Parker, "One caution uggested by these result i that we hould never say what " the people's attitude" is towards the Constitution or any other issue. Public opinion is never unanimous or even overwhelmingly on one side. It i always deeply and evenlydivided. We can only s~ay which of two widely held views ha maj~ority upportfor the time being" (Parker, op cit). 5. The method of presenting the que tion in Au tralia by putting just the titJe on the ballot paper does not a si t the voter to know exactly what he is voting about, ince the majority will make no effort to read the full text even though it is available. 6. "T'he con ervative' fear (in the 1 90 ) of the referendum a a radical democratic weapon of the rna se have almost completely given way to the oppo site view of it as a blessed assurance of constitutional immobility" (L. FA Crisp, Australian National Government, 1965). some recent European referenda The referenda held in N·orway and Denma: rk on fue issue of joining the EEC illustrate some of the problems inherent in referenda, particularly the problems of timting. There is, of course, a tactical problem of timing-as with a generalelection-but there is another and m·ore serious difficulty. An issue may be thought so special Vhat the people must decide it in a separate vote-but when ? Suppose a referendum had been held in this country on British membership of the EEC-in 1962. Would " fuLl hearted consent " to Bri.fish entry then (if permitted by De Gaulle) remain a val'id consent in 1975 ? And if not, would a further change of heart in, say, 1976, require yet another vote? 1'he Norwegian referendum in question was held in September 1972 and in it the voters were asked "Do you Vhink Norway should join the European Communities ? " 2.6 million voters were e!igible to give an answer : of these 1.1 million (or 53.5 per cent of the total poll) answered in the negative and 0.9 million (46.5 per cent) in the affiirmative, the total vote cast being 77.6 per cent of the electol"'ate. A contrastingresult emerged from the Danish referendum on the EEC held in October 1972 (a week after ~he Norwegian vote). There was a 90 per cent turnout from an electora: te of 3.5 million. The final figuresshowed neady 2 m'illion in favour of the EEC (63 per cent) and 1.1 m'illi'on aga·inst (37 per cent). But in both countries later public opinion polls suggested that Vhe voters had changed their minds. In Greece a referendum was held in 1973, under the regime of the Colonels, in which the voters may have felt that their minds were not the primary target. They were asked to confirm ithe change from m·onardhy to repubHc, and to endorse Papadopoulos as President until 1981. As one Athens newspaper po·inted out there . ' . were two thmgs a NO vote cou'ld not do : restore the monarchy or overthrow Papa dopoulos. 78 per cent of the voters voted YES to the regime's proposals, and were congratulated (by Papadopoulos) on their " great political maturity" (The Times, 18 June and 31 July 1973). The Colonels were prudent enough never to test that maturity in a general ele•ctron. A rather different problem was highlighted by the divorce referendum held in Italy in May 1974-the only referendum held since the Ital1ians adopted their present constitution. The 'issue was whether the recently passed law allowing divorce should be kept or abolished. The question on the ballot paper, however, was " Do you wish the a'brogati'on of law num'ber 898 of 1 Decem·ber 1970-rules for cases of dissolution of marriage ? " A survey showed that over a third of the electorate did not know the meaning of the word "abrogate" (The Observer, 12 May 1974). Despite---!or perhaps because of-this mind sp1inniing question, the vote resulted in a solid majority for keeping the divorce law. But it is difficult to see what useful purpose, and in particularwhat useful democratic purpose, was served by holding the referendum at all. A similar question arises in relation to N·orthern Ireland, where in March 1973 (following the Heatih Government's Northern Ireland (Border Poll) Act 1972) a referendum was held on the border question. The result, strange to relate, was a clear majority for Unionist and Protestant views. If the cause of peaceand progress in Northern Ireland was advanoed by th1is vote it wa.s evidentlydone by stealth. However, the Northern Irish referendum has had the further consequence of providing a precedent, of sorts, for a referendum within Britain ("If t!hat part of the UK can have a referendum there, why can't we have one . here? "). In the light of the collapse of democratic politics in Northern Ireland and the other troubles of the province, I that is a curious precedent. No doubt it is not the most foolish pollit1ical parallel ever sugge ted; on the other hand its claim to this distinction should not be overlooked. 4. the referendum ,perspective 1Referenda can be classified broadly into four major categories relating to different order of deci ion. These are : 1. SeU-determination-the initial dec1i- sion that a country shall be formed as a separate entity. Such decisions have fre- . quently followed. wars of independence .or revolutions, and the results have reflected the intensity of the political' emotions felt in the country at the tim·e. For example, it is interesting to compare: the huge support rendered to de Gaulle in ' 1958, when France was in a state of turmoil and the possibility of civil war . was in the air, with the peaceful and apathetic turnout of 1898 I9 in the Aus- tralian colonies that heralded the birth of a new nation on that continent. Th1is no doubt reflects the difference between a people in trouble turning to a saviour, and one in comfort and security placidly letting matters run their own course. The need for some sort of special popularvote thus appears more pressing only at times of traumatic political upheaval. 2. Constitutional change-a change in ·the scheme or rules of government. This is probably the most characteristic use of the referendum, and in many countries a referendum is the only way in which the constitution can be changed. Under these circumstances the referendum is a crucial and (as chapter three suggests) a ometimes uncontrollable device. In the UK where there is no w.r1itten or entrenched constitution, there can be no automatic or formally necessary resort to the referendum. But it would of course be possi1blle to legislate ad hoc for a refer- endum (as on the EEC issue) or even to hold one whenever a fundamental issue had to be decided, although defining the term "fundamental" would create obvious prdblems. ·3. Legislation-the routine enactments ·of government. This is a very d iffi.cul t area for referendum de'Cis'ions. The neces- sity for all parts of a government's pro- gramme to dovetail together, the require- ment for expert surveys and consultation in many ma!tters, the constraint that taxes should be adequate for a proposed programme-all these make arbitrary referral a difficult and at times dangerous procedure. T'he idea of the referendum for use in legislative matters has fallen out of favour in many we tern democra- cies although in Denmark and Italy there i~ s provis1ion, under certain conditions, for its use to repeal Acts of Parl'iament. There is also provision for consulting the voters on legislation in several communist coun- tries, nota!bly the ussR (Stewart, Modern Farms of Government) although these referenda are all merely consultative and have no power to bind the govern- ment. 4. Local government decisions -those made at state, county or munidipal level. Use at this level has reached quite a high frequency in parts of the usA and in Switzerland. As we argue below the danger of organi ed minorities bulldozing referendum votes through is always real, and at this level the risk becomes parti- cularly acute. · In chap'ter two the ideas behind the adop- tion of the referendum as a method of determination were discussed, and in chapter three the practical results for several countries of this type of decision making were studied. Of the various countries adopting some form of referen- dum as part of their system of govern- ment, we began our investigation with Switzerland-the first country (in modern times) to adopt the device as a regular part of its system and the one making the grea'test use of it. Secondly we considered the USA for its experience both of demo- oracy and of material power. ThirdlyFrance, geographkaHy our nearest neigh- bour and one of our main partners in the EEC and finally Australia, a country which for all its physi·cal remoteness is as close to the UK in parliamentary method and democratic tradiVion as is any in the world. These examples considered to- gerher should help us realistically to assess the l'ikely effects of introducing the referendum into this coun'try. The evidence collected in chapter three shows that in practical use the referendum does not tally very well with the theories of it as a radical democratic weapon, giving the ordinary citizen the r'ight to 4. the referendum ,perspective 1Referenda can be classified broadly into four major categories relating to different order of deci ion. These are : 1. SeU-determination-the initial dec1i- sion that a country shall be formed as a separate entity. Such decisions have fre- . quently followed. wars of independence .or revolutions, and the results have reflected the intensity of the political' emotions felt in the country at the tim·e. For example, it is interesting to compare: the huge support rendered to de Gaulle in ' 1958, when France was in a state of turmoil and the possibility of civil war . was in the air, with the peaceful and apathetic turnout of 1898 I9 in the Aus- tralian colonies that heralded the birth of a new nation on that continent. Th1is no doubt reflects the difference between a people in trouble turning to a saviour, and one in comfort and security placidly letting matters run their own course. The need for some sort of special popularvote thus appears more pressing only at times of traumatic political upheaval. 2. Constitutional change-a change in ·the scheme or rules of government. This is probably the most characteristic use of the referendum, and in many countries a referendum is the only way in which the constitution can be changed. Under these circumstances the referendum is a crucial and (as chapter three suggests) a ometimes uncontrollable device. In the UK where there is no w.r1itten or entrenched constitution, there can be no automatic or formally necessary resort to the referendum. But it would of course be possi1blle to legislate ad hoc for a refer- endum (as on the EEC issue) or even to hold one whenever a fundamental issue had to be decided, although defining the term "fundamental" would create obvious prdblems. ·3. Legislation-the routine enactments ·of government. This is a very d iffi.cul t area for referendum de'Cis'ions. The neces- sity for all parts of a government's pro- gramme to dovetail together, the require- ment for expert surveys and consultation in many ma!tters, the constraint that taxes should be adequate for a proposed programme-all these make arbitrary referral a difficult and at times dangerous procedure. T'he idea of the referendum for use in legislative matters has fallen out of favour in many we tern democra- cies although in Denmark and Italy there i~ s provis1ion, under certain conditions, for its use to repeal Acts of Parl'iament. There is also provision for consulting the voters on legislation in several communist coun- tries, nota!bly the ussR (Stewart, Modern Farms of Government) although these referenda are all merely consultative and have no power to bind the govern- ment. 4. Local government decisions -those made at state, county or munidipal level. Use at this level has reached quite a high frequency in parts of the usA and in Switzerland. As we argue below the danger of organi ed minorities bulldozing referendum votes through is always real, and at this level the risk becomes parti- cularly acute. · In chap'ter two the ideas behind the adop- tion of the referendum as a method of determination were discussed, and in chapter three the practical results for several countries of this type of decision making were studied. Of the various countries adopting some form of referen- dum as part of their system of govern- ment, we began our investigation with Switzerland-the first country (in modern times) to adopt the device as a regular part of its system and the one making the grea'test use of it. Secondly we considered the USA for its experience both of demo- oracy and of material power. ThirdlyFrance, geographkaHy our nearest neigh- bour and one of our main partners in the EEC and finally Australia, a country which for all its physi·cal remoteness is as close to the UK in parliamentary method and democratic tradiVion as is any in the world. These examples considered to- gerher should help us realistically to assess the l'ikely effects of introducing the referendum into this coun'try. The evidence collected in chapter three shows that in practical use the referendum does not tally very well with the theories of it as a radical democratic weapon, giving the ordinary citizen the r'ight to determine his own future. In fact some of the evidence would suggest that it has proved a conservative, unenlightened, and at times almost repressive device which offers scope for abuse by a strong leader with dictatorial lean1ings. Tliis is a rather startling conclusion and the reason for it need stating in s'Ome detail. 1. The choice as to what decisions shall be put to a referendum must necessarilybe somewhat arbitrary and under most systems is essentially in the hands of the government of the day. An· unfortunate feature has been that sometimes issues have become obscured and the actual point on which voters have made their decision has been anything but that printed on the ballot paper. This was particularly noticeable in the Gau11ist use of the referendum as a vote of confidence, rather than an expression of opinion on a specific ques6on. It is relevant here that jt was possible for a strong President to circumvent even a written constitution in order to make a direct and emottional appeal to the electorate, and thus to introduce extraneous influences into the campaign. At a more mundane level it has been seen how the factor of blind party advantage has been used at times in Aus'tral'ia, where oppositions have repeatedly campaigned agatinst measures that they themselves had proposed when in power. If the referendum is seen as a means of li'fving politi'cs above ·the level of mere party manoeuvering, this use (or a!buse) of the method should be borne strongly in mind. The idea of the irritative, as used in Swttzerland, is an answer in some measure to these o'bjecVions but, although there are attractive features about this in theory, ~he practice can again leave much to be des·ired. 2. The influence of profes ional public relations techniques is a very strong wecrpon to be taken into account when considering any form of mass decision making (the chances are that the weapon is st!ill more potent when it is used in a single issue campaign). There are also greater opp'Ortunities for manipulation of opinion by popular orators with a mass audience than in an assem'bly conducted under the proper rules of debate, and consequently less opportunity for cutting any would-be demagogue down to size. Dictators have found this s'ituation has en(tbled them to legitimatise personal rule. As mentioned in the introduction, Clemenit Attlee, in rejecting Churchill's proposal for a referendum in 1945, pointed out that the referendum had " only too often been the instrum·ent of Nazism and Facism" and explicitly mentioned Hitler's use of it. On a less spectacula'f level the use of the media by de Gaulle has been seen to have the potential to sway opinion in a one sided manner, and the Australian experience, with big business interests holding great influence over the means of communi cation, would also appear to be biased strongly towards sectional interests. An instructive use of propaganda in this latter case was seen very clearly in the 1967 " nexus " referendum where a dis creditable campaign by the extreme t:ight wing Democratic Labour Party, aimed at the known susceptibilities of an apathetic electorate, successfully threw sufficient red herrings across the trail to confuse the issues and thereby to :negate the hopes of responsible poliuicians from all the major parties. 3. The ·method of voting, the timing of the vote, and the turnout obtained at a referendum all call into question the validity of the result. Under the Australian system the method of compulsory voting has obvious advantages in so far as the possibility of a vote beingdecided by an overall minority is minimised. However, this is offset by the evidence that a comp_ulsory vote is in many cases not a considered vote and it removes the democratic right of the individual to abstain. Aga.Jn the exercising of this latter right can lead to ludicrous results as in the 1972 referendum in France "approving" the enlargement of the Common Market. Such were the confusions of the issues involved, and such the success of an organised boycott of the referendum, that the result was capableof virtually any interpretation one wanted to give it. In the absence of compulsory voting it would appear highly probable from the evidence that, except in a real national emergency, turnout figures would Je relatively low on even quite important atters (the federation referenda in 1\ustralia prQvide a remarkable example) md the dangers of a highly organised inority wielding a totally disproportion- :tte influence are very real. In this latter ~ontext must be mentioned the possible abuse of the initiative as a democratic weapon-it is easy to see how a highly Jrganised group, operating with the assist- :mce of a competent public relations tea·m a. nd with access to the media, could ullify the work of a democratically;lected government. It would seem that his sort of threat would most probably ;manate from the forces of the Right, ~ince they would be more likely to have ccess to the necessaTy resources and ;xpertise for this type of campaigning ·han would those of the Left. t A sobering lesson to be learned from . he referendum in practice is that publicJpinion as expressed 'bY popular vote is I Jften well in the rearguard of public' :>pinion as it comes to be formulated ' following the consequences of that popu- ar vote. This is seen quite clearly in ractke. As late as 1959 a two to one najority of (male) voters in Switzerland ecided that 1women should not have the vote. Comment is superfluous. And the AustraUan experience· is chilling-con- j nually shackled by the need to obtain ~onstitutiona·l amendment by way of referendum, successive governments have een unable to introduce legislation in pinion as it comes to be formulated ' following the consequences of that popu- ar vote. This is seen quite clearly in ractke. As late as 1959 a two to one najority of (male) voters in Switzerland ecided that 1women should not have the vote. Comment is superfluous. And the AustraUan experience· is chilling-con- j nually shackled by the need to obtain ~onstitutiona·l amendment by way of referendum, successive governments have een unable to introduce legislation in