Date: Fri, 02 Aug 2002 11:17:00
From: Michael Macpherson <mjm@snafu.de>
Subject: Legal basis for national referendums
Organization: PSAMRA ~ Integral Studies
To: law-public <law-public@jiscmail.ac.uk>, public-admin-and-management
<public-admin-and-management@jiscmail.ac.uk>

Referendums are sometimes held on major public issues such as international treaties or devolution. Perhaps there will be a referendum in which the British people will decide whether to adopt the Euro or not.

I have some questions to members of the public law and publicadmin forums.

Is there a legal basis for referendums of this kind? Or is there only an unwritten tradition?

If a referendum were to be held about the Euro, would the resulting decision be binding on parliament, government and monarch?

Sincerely,

M Macpherson

Dr. Michael Macpherson,
PSAMRA/Integral Studies,
Berlin FRG

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From: "Ashton, Chris" <C.Ashton@napier.ac.uk>

To: 'Michael Macpherson ' <mjm@SNAFU.DE>

Subject: RE: Legal basis for national referendums

Date: Fri, 2 Aug 2002 11:12:35 +0100

Hello Michael

The devolution referendums for Scotland and Wales were preceeded by an Act of Parliament in summer of 1997 authorising the holding of the referendum. The results were not specifically stated to be binding - that would go against the doctrine of parliamentary sovereignty.

It is likely, based on this 'precedent' that the government will introduce a short bill authorising a refrendum on the Euro, but again the result will not bind Parliament.

However, if there were a clear decision (either way) with a good turnout of the electorate, it would be difficult for Parliament to ignore the expressed wishes of the electorate.

Hope this helps.

Chris Ashton

School of Law

Napier University

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Date: Fri, 02 Aug 2002 13:33:19

+0200 From: Wallace-Macpherson <mm@iniref.org>

Organization: Citizens' Initiative and Referendum I&R To: "Ashton, Chris" <C.Ashton@napier.ac.uk> Subject: Re: Legal basis for national referendums

Dear Chris,

I knew that acts of parliament had been passed in order that national referendums might be held.

What I'm trying to get at here is, what is the legal or constitutional basis of this practice. In contrast, in France a national referendum may be called by the president. In Switzerland a national referendum to change or re-write the constitution may be called by an agreed proportion of citizens. The law governing these practices is afaik to be found in the constitutions.

Where is it stated that in GB & NI, a national referendum may be held (only) if an act of parliament allows it? Or, how did the tradition and practice arise?

Regards,

Michael

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Date: Fri, 2 Aug 2002 16:44:28 +0100

Reply-To: "A list for the discussion of issues around Public/Constitutional Law." <LAWPUBLIC@JISCMAIL.AC.UK> Sender: "A list for the discussion of issues around Public/Constitutional Law." <LAW-PUBLIC@JISCMAIL.AC.UK>

From: Sue Radlett <s.radlett@VIRGIN.NET>

Subject: Re: Legal basis for national referendums

To: LAW-PUBLIC@JISCMAIL.AC.UK

All UK referenda have been authorised by Act of

Parliament.

David Radlett

University of Kent at Medway

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From: "Ashton, Chris" C.Ashton@napier.ac.uk

To: 'Wallace-Macpherson ' <mm@iniref.org>
Subject: RE: Legal basis for national referendums

Date: Sun, 4 Aug 2002 13:40:38

Hello again Michael

There is no legal or constitutional basis for holding a referendum in the UK other than that granted by an Act of Parliament. The doctrine of supremacy of Parliament gives all power to Parliament (and in effect to the Commons)to decide whether or not to seek the advice of the electorate. The first UK referendum held (I think I'm right here) was in June 1975 by the Labour government seeking the assent of the electorate to remain in the then EEC. Other than the NI referendum of the early 1970s, all referendums have been sanctioned by the Labour government. Thus politically, it could be argued that they are not 'traditional' since the other main political party does not approve of them.

The lack of a formal, written constitution for the UK means that we are dependent on the will of Parliament as to whether a referendum may be held. There is certainly no mechanism for the electorate calling for a referendum on any issue.

Chris

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From: Wallace-Macpherson <mm@iniref.org>

Re: Legal basis for national referendums

Date:Sun, 04 Aug 2002 16:28:20 +0200

Organization: Citizens' Initiative & Referendum I&R

"Ashton, Chris" wrote:

> Hello again Michael

> There is no legal or constitutional basis for holding a referendum in the UK > other than that granted by an Act of Parliament. The doctrine of supremacy > of Parliament gives all power to Parliament (and in effect to the Commons)to > decide whether or not to seek the advice of the electorate.

The "supremacy of Parliament" appears to originate from power struggles with the monarchy. I doubt that the question concerning parliament's

seeking advice from the electorate, or the meaning of referendum, has ever been much discussed in this context. You may know otherwise.

> The first UK

> referendum held (I think I'm right here) was in June 1975 by the Labour

> government seeking the assent of the electorate to remain in the then EEC. > Other than the NI referendum of the early 1970s, all referendums have been > sanctioned by the Labour government. Thus politically, it could be argued

> that they are not 'traditional' since the other main political

party does > not approve of them.

> The lack of a formal, written constitution for the UK means that we are

> dependent on the will of Parliament as to whether a referendum may be held. > There is certainly no mechanism for the electorate calling for a referendum > on any issue.

> Chris

Well, there's apparently no law that governs it but I do not see why a binding referendum proposal could *not* be passed by the electorate, in a citizen-initiated process. The supremacy of parliament over the monarchy and other institutions would not be contradicted. The electorate elects parliament so is clearly the higher instance and IMO may decide on issues as well as on personal selections. Some regulations and/or a code of practice would be needed for the initiative and referendum process.

Sincerely,

Michael

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From: william.lawton@dfait-maeci.gc.ca

To: mjm@SNAFU.DE

Subject: RE: Legal basis for national referendums

Date: Mon, 5 Aug 2002 07:01:48 -0400

Michael, just for info: last week, UK Local Government Minister Nick Raynsford gave a talk on referenda for setting up elected regional assemblies in England. Whether a referendum will be held will be entirely a UK govt decision. He suggested that a fixed formula by which to trigger referenda is 'unrealistic'.

This doesn't answer any of your questions; just thought you might like to know of this recent example.

The speech is available at http://www.odpm.gov.uk/about/ministers/speeches/raynsford/310702.h tm.

Best wishes,

Bill

-----------------------------------------

Dr William Lawton

Political Officer

Canadian High Commission

1 Grosvenor Square

London W1K 4AB

tel 44-20-7258 6519

fax 44-20-7258 6606

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From: "Ashton, Chris" <C.Ashton@napier.ac.uk>

To: 'M J Macpherson ' <mjm@SNAFU.DE>

Subject: RE: Legal basis for national referendums

Date: Mon, 5 Aug 2002 15:48:05 +0100

Hi Michael

Sorry, I'm beginning to sound like a broken record but it all comes back to the doctrine of supremacy of Parliament. This is quite clear - there is no higher legal authority than Parliament (there are arguments that this is still the case even with membership of EC) and no Parliament can bind its successors.

So, politically the government will do well to seek the opinion of the electorate but legally speaking, if they then decide to ignore that advice/opinion and Parliament passes a law to that effect, the law will be upheld by the courts (failing any drafting defects and such like). It will not matter that the referendum result disagreed - the source of law is that made by Parliament.

There is no reason why 'citizens' initiatives' cannot be involved in the consultation process but at the end of the day, Parliament has the final say.

Chris

-----Original Message-----

From: M J Macpherson

To: LAW-PUBLIC@JISCMAIL.AC.UK

Sent: 05/08/02 10:37

Subject: Re: Legal basis for national referendums

It seems that the 1975 national referendum about membership of the European Community set a precedent and that the "tradition" is not older than that. I would like to see the process of referendum regulated in law and I guess that could be made by parliament in a similarly ad hoc way.

I propose that referendum may be initiated not only by parliament but also if a large number of electors propose such and that the decision made should be binding. This should be preceded by a procedure of citizens' initiative which can put a proposal before parliament. Is there any reason why this could not be done? Similar proposals are in the manifestos of the Liberal Democrats and the Green Party.

Sincerely,

Michael Macpherson

David Radlett wrote:

> I'm probably being a bit simplistic here, but I would have thought

that the

> basic doctrine of Parliamentary supremacy is enough of a legal basis.

>

> David Radlett

>

> ----- Original Message -----

> From: "Dr. Michael Macpherson" <mjm@SNAFU.DE>

> To: <LAW-PUBLIC@JISCMAIL.AC.UK>

> Sent: Saturday, August 03, 2002 5:51 PM

> Subject: Re: Legal basis for national referendums

>

> > I knew that acts of parliament had been passed in order that national

> > referendums might be held.

> >

> > What I'm trying to get at here is, what is the legal or constitutional

> > basis of this practice. In contrast, in France a national referendum may

> be

> > called by the president. In Switzerland a national referendum to change or

> > re-write the constitution may be called by an agreed proportion of > citizens.

> > The law

> > governing these practices is afaik to be found in the constitutions. > >

> > Where is it stated that in GB & NI, a national referendum may be held

> > (only) if an act of parliament allows it? Or, how did the tradition and

> > practice arise?

> >

> > Michael Macpherson

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Date: Thu, 8 Aug 2002 21:25:06 +0100

From: Kevin Bampton <K.Bampton@DERBY.AC.UK>

Subject: Re: Legal basis for national referendums

To: LAW-PUBLIC@JISCMAIL.AC.UK

I've just seen your query about referenda. As far as I can tell you seem to have the following questions.

1. Are referenda as a general mechanism written into our constitution? The answer is no largely because of the supremacy of parliament as the organ of representative democracy. The nearest thing in the UK is to be found in the rather general comittment in the Northern Ireland Constitution Act which states that changes in the sovereign identity of Northern Ireland will not be made without the support of the majority of the people of Northern Ireland. Significantly, there is no mechanism stipulated for this consultation nor is there any sanction for failure to comply with it. One might assume this is peculiar to the Northern Irish situation, but it has some echoes in commonwealth constitutions drafted in Whitehall.

For each of the referenda held in this country specific legislation has been passed. Each has been enabling, but Parliamentary draftsmen are shy of drafting legislation that purports to bind Parliament - even the European Communities Act and the Human Rights Act do not purport to ultimately remove power from Parliament. The most interesting case study on referenda, Parliament and how far they feel bound is to be found by studying the first UK devolution attempts. This being said the new Electoral Commission has been given generic control over inter alia referenda which effectively means that the independent conduct of referenda is assured. For various reasons this practically makes a huge difference to the likelihood of a referendum sticking and also provides a path of

legal query (albeit by very circuitous routes via judicial review. Judicial review probably is the most important potential tool to make a referendum decision stick in practise. Although legislation can set out the general parameters of a particular referendum, the detail is filled in by delegated powers either to make regulations (for example by a responsible Secretary of State) or through the exercise of a discretion (e.g. the determinations of the electoral commission) or through the imposition of a statutory duty counting votes etc. If a Minister were empowered to run a referendum according to certain principles etc. and the electoral commission to report to Parliament and the Minister results then an affirmative result by implication of the enabling act (one would assume) can place on the Minister a duty to act. For example, if an Act of Parliament stipulated that there will be a referendum within a given time to determine whether we join the Euro, the minister would probably be given the duty of putting together the regulations to fill in the details. If he failed to take action on this, then conceivably he could be judicially reviewed to force him to exercise these powers within a reasonable time (if such could be implied by the statute). The electoral commission would have to report directly to Parliament and to the minister and armed with this information the consequences element of the act would come into play and therein lies the first sting.

Such an act is unlikely to say that if the majority of those voting favour the Euro, the Minister will introduce legislation come what may to enable Britain's entry into the Euro - if it did then there would be the possibility of going to court if the minister did not. This approach has never been successfully tried with respect to compeeling legislation, but has been tried in respect of seeking to restrain legislation so it is theoretically within the jurisdiction of the courts (a long shot). More likely the reult of the referndum would be informative possibly triggering a mechanism for a delegate group to consider the mechanics and expediencies of joining the Euro [sic].

2. Can Parliament be compelled to follow the results of a referendum if it (in its own enabling act) had committed itself to following the majority vote? This is an academic question. Probably if it is the same Parliament that passed the act, it would on the basis of never asking a question to which it does not know the answer beforehand. Technically, it could be argued that Parliament is bound to follow the referendum if that is the procedure that Parliament has stipulated. Parliament can always modify and regulate its own procedure and the officers of Parliament will generally ensure that that process is followed (normally through the office of Speaker). However, this does not prevent Parliament from repealing the enabling act. Effectively, Parliament can ignore or not ignore the referendum, but it cannot ignore the enabling act - it must either follow it or repeal it. Were Parliament to ignore its own laws well...!

The nearest thing to this type of drama being played out was in New South Wales with a theoretically sovereign Parliament. However, this was operating under Westminster's supervision via the Colonial Laws Validity Act and is probably not as useful a precedent as it superficially seems. However, the case makes good reading of the classic views of the relationship between referenda and sovereign Parliaments.

Having drafted referenda legislation, I feel the reality is that once you announce that you are going to ask the question, the mechanism has a momentum of its own, but generally the mechanism for what you do with the answer is non-committal, has escape clauses or is so loaded that only one result arises. It should never be forgotten that the referendum is a tool of government against whom the lever of legal compulsion can be used by means of the fulcrum of statute. Parliaments are seldom keen on referenda

since it undermines the Parliament's status as being representative. It is however, useful to avoid responsibility altogether. Draftsmen work to these briefs - right or wrong. It is for these reasons too that while we remain a Parliamentary democracy wed to the Westminster tradition there will be no general constitutional facility for referenda.

Hope this is of use.

Cheers

Kevin

>>> mjm@SNAFU.DE 08/06/02 12:00 PM >>>

No, I have not seen Goodhart's book. Last year I prepared a report "Prospects for more democracy in Great Britain and Northern Ireland". It is mainly about citizen-initiated processes so I did not include much about government- or parliament-initiated referendums.

If anyone is interested, I will send a draft copy.

I would be interested to discuss how to get more academic and publishing work done in this area. A first step could be to document what has been done in GB already, and to find out what, if anything, is happening now.

Sincerely,

Michael Macpherson

David Radlett wrote:

> Have you encountered Philip Goodhart's "Referendum" - written when the EEC

> referendum was first being considered? Lots of useful background if I

> recall.

>

David Radlett

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From: "Colin Talbot" <colin.talbot@btinternet.com>

To: "'Michael Macpherson'" <mjm@SNAFU.DE>

Subject: RE: Legal basis for national

referendums

Date: Fri, 9 Aug 2002 12:19:28 +0100

Dear Michael,

In reply to your questions (and to the best of my knowledge):

1) referenda (in the UK) have no legal basis other than the specific piece of legislation for each specific referendum. Although there is a 'tradition' it is very thin and any new legislation will be at the whim of the government. I do understand that the Government will/may pass the precise formulation of the referendum question to the Electoral Commission - an independent body.

2) the legal 'force' of the result depends on how the specific

legislation is framed. Generally it would be unlikely to bind the executive because (a) any legislation can always be overturned (even retrospectively) on a subsequent Parliamentary vote (b) the executive is formally appointed by the Monarch not Parliament, and represents 'the Crown in Parliament'. Crown prerogative cannot be over-ruled, as such, by Parliament although this is a murky area of the British "constitution". The political force of the result is another matter - no Government could call a referendum and then ignore the verdict without committing electoral suicide.

Hope this is helpful

Cheers

Colin

Prof. Colin Talbot

University of Glamorgan

+44 1443 482310

ctalbot@glam.ac.uk

Public Futures

+44 1600 780431

colin.talbot@publicfutures.com

Personal

+44 7976 919 126 (Mobile)

+44 1600 780444 (Home)

colin.talbot@btinternet.com

*************************************************************** *

From: "Humberto Jose Silva Nigrinis"

<hjsilvan@dane.gov.co> To: "'Michael Macpherson'" <mjm@SNAFU.DE>

Subject: RE: Legal basis for national referendums Date: Fri, 9 Aug 2002 10:34:20 0500

Those questions are very interestimg, specially if you are refering to public policies.

Here in Colombia, we are about to apply a referemdum to reduce the parliament and to remove some of the constitutional powers that

the Legal Courts have to restrict the possibilities of the President to manage the public order.

We have some contitutional restrictions. It has to be binding on parliement, but only the questions, the result has no to be approved by the parliament.It is obligatory.

It would be very interesting to know about the process of the referendum in Britain, to apply some of the initiatives here in Colombia in the nexts months.

Sincerely,

Humberto JosE9 Silva

Asesor in Reform of the State

DANE- COLOMBIA

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Date: Sat, 10 Aug 2002 10:28:14 +0900

To: Michael Macpherson <mjm@SNAFU.DE>,

PUBLIC-ADMIN-AND-MANAGEMENT@JISCMAIL.AC.UK

From: "Robert J. Dickey /home"

<rjdickey@soback.kornet.net> Subject: Re: Legal basis for national referendums
 

Speaking from the (US) American perspective, the process of referendum is20 written into American statutory law. Each jurisdiction defines whether referendum may be binding, or advisory only, and where the binding referendum is authorized, the makers of the referendum (generally government legislatures) may determine at the writing of the referendum to make it advisory only. (referendum 3D refer to the people for opinion/decision) An initiative (arising from citizen's petitions, often requiring 2% or 5% of registered voters' signatures to climb onto a ballot), is more likely to be written as a binding decision of the electorate. (initiative and referendum process initiated by the citizenry)

It is my impression of British law that subjects of the crown do not posses authority to bind parliament. Those with more extensive knowledge of British "constitutional" law may correct me.

Rob

Prof. Robert J. Dickey, MPA JD

Kyongju University

Kyongju City, Kyongbuk

S. Korea 780-712

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From: "Futurist" <Futurist@Frontiernet.net>

To: "Michael Macpherson"

<mjm@SNAFU.DE> References:

Subject: Re: Legal basis for national referendums Date: Sat, 10 Aug 2002 03:11:41 -

It is my understanding that under the common law as interpreted by Blackstone a referendum is quite permissible. It must be remembered that the concept is consistent with the social contract doctrine as developed by Kant, Locke, Rousseau and other political philosophers of that time.

The other side of the coin, however, is the lack of understanding that most people have of governmental operations and the ease of

which demagogues and special interests are able to manipulate public sentiment to the point that not only does the public not know or fully understand the implications of what they are voting for -- or against -- but they frequently tend to vote against their own best interests.

The passions that regularly inflame us combined with the public's general ignorance are therefore among the greatest deterrents to the use of the referendum. Only when the majority of the public develop the ability to engage in continuous critical thinking and have the knowledge necessary to make fully informed and dispassionate value judgments that serve the common interest will we have the social construct necessary for referendums in the first instance and direct democracy in the second.

A. M. Genen

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Date: Sat, 10 Aug 2002 18:56:46 +0100

From: Kevin Bampton <K.Bampton@DERBY.AC.UK>

Subject: Re: Legal basis for national referendums

To: LAW-PUBLIC@JISCMAIL.AC.UK

There is a classic discussion in Attorney General (New South Wales) v Trethowan 47 CLR 97 if memory serves.

I am off for a few weeks but would like to pick this up where we left off. Cheers

kevin

>>> mjm@SNAFU.DE 08/09/02 11:26 AM >>>

Kevin,

Would be grateful if you could tell me the date of the NSW example and

if easily possible give a reference.

While looking around down under I found at http://www.ccentre.wa.gov.au/htm l/appendix_2.html

"Acts Amendment (Constitution) Act 1978

This Act of the Western Australian Parliament entrenched the position of the governor and the two Houses of Parliament in the State's Constitution. The amendment meant that any attempt to abolish the office of governor or the Houses of Parliament had to be approved by popular vote in a referendum, as well as by absolute majorities in the Legislative Assembly and Legislative Council. Before this, State Parliament had been able to amend the constitution in its entirety, without the agreement of the people."

which seems to offer another precedent for writing obligatory binding referendum into law.

Regarding your last paragraph which ends, "It is for these reasons too that while we remain a Parliamentary democracy wed

to the Westminster tradition there will be no general constitutional facility for referenda." I do not see any hindrance to the introduction of constitutional legislation to govern the conduct and powers of citizens' initiative and

referendum. A majority of MPs would have to be persuaded to vote for such. ;-)

Thanks very much for your explanation. Perhaps those remarks about the Euro referendum should be made available to the electorate, so that people will get a clearer idea about the meaning of their participation and vote.

Michael

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From: "Futurist" <Futurist@Frontiernet.net>

To: "Michael J Macpherson" <mjm@SNAFU.DE> Subject: Re: Legal basis for national referendums Date: Sat, 10 Aug 2002 17:29:02 -0400

You can find Blackstone's Commentaries on English Law at most good book stores in London.

There are several thoroughly annotated editions that can provide you with all of the cross references that you can possibly use.

A. M. Genen

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From: "Futurist" <Futurist@Frontiernet.net>

To: "Michael J Macpherson" <mjm@SNAFU.DE>

Subject: Re: other side of the coin (was: Legal basis for national referendums Date: Sat, 10 Aug 2002 18:01:28 -0400

Dear Michael J Macpherson:

Having done some research on initiative and referendum I ca provide

you with reasonable assurance that the Swiss are as vulnerable to referendum by passion as anyone else.

A good example might be as to how the Swiss voted against their own best interest in the referendum they had on national health insurance some years ago. In that instance -- as in numerous other instances throughout the world -- the opinions expressed were to a great extent manipulated by the influences of advertising paid for by various private insurance companies who chose to consider their personal profits ahead of the best interests of the Swiss people.

In another well known instance a well financed "public relations" campaign was used to manipulate the people into believing that the national health plan proposed by former President Clinton would not provide them with their choice of physician. Although there was no direct national referendum in that instance the direct and indirect pressure on the American Congress was sufficient to kill the health plan. (Obviously, the "campaign contributions" that the members of our Congress obtained from representatives of the insurance industry were also a prime factor in defeating it.)

From another perspective, the input provided to the government of the UK by members of the various QUANGOS have clearly demonstrated that the limited knowledge that most people have of government can have a detrimental effect on the management of government. In most instances I suspect that you'll find that strategic planning and the analysis and implementation of public policy is best left to the permanent secretaries and the senior civil servants in the Ministries who have devoted their entire non-political and wholly objective careers learning and perfecting their extensive skills.

Contrary to popular belief government is no place for amateurs..

A. M. Genen

----- Original Message -----

From: "Michael J Macpherson" <mjm@SNAFU.DE>

To: <PUBLIC-ADMIN-AND-MANAGEMENT@JISCMAIL.AC.UK>

Sent: Saturday, August 10, 2002 1:36 PM

Subject: other side of the coin (was: Legal basis for national referendums

> Dear A. M. Genen,

>

> Thank you for this reply. I am sending a reply to your first paragraph

> separately to the PUBLIC-ADMIN-AND-MANAGEMENT forum.

>

> The other aspect of your message - whether elements of direct democracy should

> be used at all - is something which I would be pleased to discuss in another

> thread.

>

> Briefly to your points.

>

> The type of democratic reform which I and others propose - simply put,

> citizens' initiative and referendum (I&R) in a "three-step" procedure which

> integrates parliament - takes care of your concerns. Only the best proposals

> get through, it's slow (more than a year, usually longer) so passions can cool,

> there is time for information, debate and deliberation. The Swiss I&R works

> pretty well. If the Swiss people have sufficient "ability to engage in > continuous critical thinking and have the knowledge necessary to make fully

> informed and dispassionate value judgements that serve the common interest"

> then I think that we British do as well - or we could learn this quickly ;-) if

> the tools of I&R were to be made available to us.

>

> Regards,

>

> Michael Macpherson

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*

From: "Colin Talbot" <colin.talbot@btinternet.com>
 
 

To: "'Michael J Macpherson'" <mjm@snafu.de>

Subject: RE: Legal basis for national referendums Date: Sun, 11 Aug 2002 01:43:46

Hi Micahel,

I had a quick look at the discussion - your question about why there isn't/couln't be an citizen initiated referendum in the UK is simply answered - the UK doesn't have citizen's - only subjects (of the crown). Until we move beyond the present 'constitutional monarchy' - which isn't constitutional at all and would probably be better called conventional monarchy (i.e. everything is based on convention rather than law) - you couldn't even contemplate the type of citizen based system which exists in 'purer' democracies.

As for Public Futures -we're a small company specialising in facilitating p8ublic management reform, especially on 'performance' issues - see our website - www.publicfutures.com Cheers

Colin

Prof. Colin Talbot

University of Glamorgan

+44 1443 482310

ctalbot@glam.ac.uk

Public Futures

+44 1600 780431

colin.talbot@publicfutures.com

Personal

+44 7976 919 126 (Mobile)

+44 1600 780444 (Home)

colin.talbot@btinternet.com

-----Original Message-----

From: Michael J Macpherson [mailto:mjm@snafu.de]

Sent: 10 August 2002 18:36

To: Colin Talbot

Subject: Re: Legal basis for national referendums

Dear Colin,

Thank you for your answers, very helpful.

You might be interested in a longer comment by Kevin Bampton in a message to the Law-Public (British universities) list http://www.jiscmail.ac.uk/lists/LAW-PUBLIC.html

message Thu, 8 Aug 2002 21:25:06 +0100: http://www.jiscmail.ac.uk/cgi-bin/wa.exe?A2ind0208&Llawpublic&T0&F& S&P1043

Michael

p.s. What's Public Futures ?

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To: Michael J Macpherson <mjm@SNAFU.DE>

From: "Robert J. Dickey /home"

<rjdickey@soback.kornet.net>

Subject: Re: Legal basis for national referendums

I don't have my copy of Black's Law Dictionary at hand (it's an American Dictionary, but often references English common law precedents), but I believe what is written by Futurist is not incorrect. Note my previous, however. Referendum is referred from the legislature to the people. That which comes direct from the people is an initiative (initiated by the people). I don't believe initiatives are in the English common law, based on the theme that the King/Queen in Parliament is the absolute source of all English law.

Rob

At 07:36 BFC0C8C4 02-08-10 +0200, you wrote:

>Futurist wrote:

>

> > It is my understanding that under the common law as interpreted by

> > Blackstone a referendum is quite permissible.

>

>Could you please tell me where to find this source, and if possible where

to

>look for more information about common law and referendum, especially

relating

>to Great Britain and Northern Ireland.

>

>That would be very helpful.

>

>Sincerely,

>

>Michael Macpherson

>

>Dr. Michael Macpherson,

>PSAMRA/Integral Studies,

>Berlin FRG

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Date: Sun, 11 Aug 2002 17:00:23 +0100

PUBLIC@JISCMAIL.AC.UK> From: Sue Radlett <s.radlett@VIRGIN.NET> Subject: Re: Legal basis for national referendums

To: LAW-PUBLIC@JISCMAIL.AC.UK

The Australian material is all very fascinating, but as i tell my students, it provides no binding precedent: the Australian Parliament was not (at the time anyway) supreme; the Westminster parliament is (and was at the time).

David Radlett

----- Original Message -----

From: "Kevin Bampton" <K.Bampton@DERBY.AC.UK>

To: <LAW-PUBLIC@JISCMAIL.AC.UK>

Sent: Saturday, August 10, 2002 6:56 PM

Subject: Re: Legal basis for national referendums

** Reply Requested When Convenient **

There is a classic discussion in Attorney General (New South Wales) v Trethowan 47 CLR 97 if ,e,ory serves.

I am off for a few weeks but would like to pick this up where we left off. Cheers

kevin

>>> mjm@SNAFU.DE 08/09/02 11:26 AM >>>

Kevin,

Would be grateful if you could tell me the date of the NSW example and

if easily possible give a reference.

While looking around down under I found at http://www.ccentre.wa.gov.au/html/appendix_2.html

"Acts Amendment (Constitution) Act 1978

This Act of the Western Australian Parliament entrenched the position of the governor and the two Houses of Parliament in the State's Constitution. The amendment meant that any attempt to abolish the office of governor or the Houses of Parliament had to be approved by popular votein a referendum, as well as by absolute majorities in the Legislative Assembly and Legislative Council. Before this,
State Parliament had been able to amend the constitution in its entirety, without the agreement of the people."

which seems to offer another precedent for writing obligatory binding referendum into law.

Regarding your last paragraph which ends, "It is for these reasons too that while we remain a Parliamentary democracy wed to the Westminster tradition there will be no general constitutional facility for referenda." I do not see any hindrance to the introduction of constitutional legislation to govern the conduct and powers of citizens' initiative and referendum. A majority of MPs would have to be persuaded to vote for such. ;-)

Thanks very much for your explanation. Perhaps those remarks about the Euro referendum should be made available to the electorate, so that people will get a clearer idea about the meaning of their participation and vote.

Michael

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Date: Mon, 12 Aug 2002 10:21:58 +1000

Law." <LAW-PUBLIC@JISCMAIL.AC.UK> From: Nicholas Aroney <n.aroney@MAILBOX.UQ.EDU.AU> Subject: Re: Legal basis for national referendums

To: LAW-PUBLIC@JISCMAIL.AC.UK

You may be interested to note that the WA provision is not uncommon in

Australia. For example, s 53(1) of the Constitution Act 1867

(Queensland) provides:

"A Bill that expressly or impliedly provides for the abolition of

or alteration in the office of Governor or that expressly or

impliedly in any way affects any of the following sections of this Act namely--

sections 1, 2, 2A, 11A, 11B; and

this section 53

shall not be presented for assent by or in the name of the Queen unless it has first been approved by the electors in accordance with this section and a Bill so assented to consequent upon its presentation in contravention of this subsection shall be of no effect as an Act."

It is widely accepted that such provisions are effective, despite the fact that the Constitution Act is an ordinary statute of the Queensland Parliament, and under general principles of 'parliamentary sovereignty', is liable to alteration by ordinary statute of the same Parliament. (For background on recent developments in Queensland, see, eg, http://www.constitution.qld.gov.au/.)

The basis for the efficacy of 'entrenching' provisions such as these is an interesting question. Section 6 of the Australia Acts (UK) and (Aust) 1986, provides:

"Notwithstanding sections 2 and 3 (2) above, a law made after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act."

It is argued that s 6 renders provisions such as s 53 legally effective -so long as the relevant provision relates to the 'constitution, powers or procedures' of the Parliament and also, that the entrenching provision genuinely imposes a 'manner and form' requirement. Perhaps more perplexing, is the question whether it is the UK version of the Australia Act, or the Australian version, that provides the sufficient constitutional basis for the entrenchment of the State provision.

Nicholas Aroney

University of Queensland

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Mon, 12 Aug 2002 16:55:47 +0300 (EAT)

Subject: Re: Legal basis for national referendums To: Michael Macpherson <mjm@SNAFU.DE>

From: "Jay Moor" <Jay.Moor@unhabitat.org>

Date: Mon, 12 Aug 2002 16:49:46 +0300

Dear Michael,

I am not sure that there is provision at the national level in the USA for referenda, with the exception of a Constitutional amendment, but as mentioned by others each state does have its own rules. In addition to the advisory versus mandatory, there is at least one variation on the mandatory: a legislature may be faced with a qualified referendum, duly signed by the required number of registered voters, and may then be given a certain time to come up with its own alternative wording for the ballot, to achieve the same result. I suppose this was intended to defuse a potential legislative disaster that could result from passing a popular but hare-brained scheme that would hamstring government. In effect, however, it lets the fox design the henhouse. If I'm not mistaken, the referendum, as a tool of democratic governance, arose with the Progressive movement in the USA, which was a reaction to the rampant corruption in both government and business at the turn of the 20th century. It is not often used, which means it is probably a fairly good tool for its purposes -- a lastresort safety valve for civil society in case of unreponsive representative government on issues of particular importance to the electorate. Obviously, its use is not encouraged by politicians, meaning that to create an enabling statute allowing its use requires the existence of a high degree of public outrage on some big issue at the moment of passage (like Parliament looking the other way when basic corporate accounting practices are violated and personal pensions plans crash; or like the chief executive selectively enforcing securities exchange laws allowing a few cronies to cash in before the stock market crashes). In the USA, the federal government would fight tooth and nail against a Congressional statute allowing referenda on treaties, since this is one of the few mandates reserved to the feds and a major instrument of foreign policy.

My guess is that such a law would require Constitutional amendment. It may be appealing to enough voters, however, to actually pass.

Jay Moor

Special Advisor for Strategic Planning

Office of Executive Director

UN-HABITAT

The United Nations Human Settlements Programme

P.O.Box 30030, Nairobi, Kenya

Tel: 254-2-623693

Fax: 254-2-623080

email: jay.moor@unhabitat.org

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Date: Mon, 12 Aug 2002 18:10:19 +0100
 
 

Reply-To: Wendy Russell Barter <Wendy.Russell_Barter@ODPM.GSI.GOV.UK>

Sender: "For researchers in the field of public administration and management." <PUBLIC-ADMIN-ANDMANAGEMENT@JISCMAIL.AC.UK> From: Wendy Russell Barter <Wendy.Russell_Barter@ODPM.GSI.GOV.UK>

Subject: Re: Legal basis for national referendums

Comments: To: rjdickey@SOBACK.KORNET.NET

To: PUBLIC-ADMIN-AND-MANAGEMENT@JISCMAIL.AC.UK

Just a brief response, from the perspective of the UK. National and sub-national referendums to date have been held at the discretion of the Government, to advise it on how to deal with matters of constitutional importance. There is no requirement to hold a referendum in particular circumstances. Technically, too, the result is not binding, although in practice it would be very difficult to see the Government of the day going against the wishes of the people, as expressed at the referendum.

Wendy Russell Barter

Principal Research Officer

Local & Regional Government

Research Unit Office of the

Deputy Prime Minister Eland

House

Bressenden Place

London SW1E 5DU

Tel. 020 7944 4124

Fax. 020 7944 5183

email: wendy.russell_barter@odpm.gsi.gov.uk

You can view the 2002/03 LRGRU research programme newsletter at http://www.local.dtlr.gov.uk/research/indexa.htm Disclaimer: These are personal views and may not reflect the views of the ODPM.

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Date: Thu, 15 Aug 2002 20:29:42 +1000

To: Michael J Macpherson <mjm@SNAFU.DE>

From: "Dr. Hal K. Colebatch" <h.colebatch@unsw.edu.au> Subject: Re: Legal basis for national referendums

Mr Nigrinis might also like to look at the experience of Australia, where the federal constitution can only be changed by a referendum, and the question has to be supported by a majority of the voters in a majority of the six states. Very few refendums manage to do this, and it is generally seen as a very conservative provision. For instance, in the state of Queensland, the Upper House of the state parliament, which was abolished in 1922, cannot be restored without a referendum; in New South Wales, the Upper house cannot be abolished without one - one both cases, the provision was inserted in the state consitution to entrench the two different status quos.

a few years ago, a Labour federal government promised a referendum on whether Australia should become a republic, but was then defeated at the polls. The incoming conservative government ran the referendum, but campaigned ghainst a yes vote, and the proposal was defeated.

--

Dr Hal K. Colebatch

Director of Postgraduate Studies

School of Social Science and Policy

UNSW SYDNEY NSW 2052

AUSTRALIA

Tel: 61-2-9385 3571

Fax: 61-2-9385 1040

E-mail: h.colebatch@unsw.edu.au http://www.arts.unsw.edu.au/ssp/

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Date: Thu, 15 Aug 2002 10:45:59 -0700

To: Michael J Macpherson <mjm@SNAFU.DE> From: john ellwood <jellwood@socrates.Berkeley.EDU> Subject: Re: [Fwd: Legal basis for national referendums]

The US Experience with Referendums

Rather than general email chatter I suggest that those interested in the US experience with referenda consult the extensive body

of quite good scholarship on the subject. But first, some points:

(1) As already mentioned the US referenda is a progressive era invention. Please note that the referenda should be differentiated from the initiative. Generally the referenda allows voters to overturn laws. The initiative allows voters to create laws (and pass constitutional amendments) directly. (A third progressive era creation was the recall -- which allows voters to throw office holders out-of-office before their term is completed.

(2) These devices are available on the US state and local levels of government. But not all states and localities have adopted them. Moreover, the specifics of these devices vary across jurisdictions. Because the institutions and procedures vary so do the politics of these devices vary across jurisdictions.

(3) As to scholars. in recent years the best work on the initiative has been done by Professor Elizabeth Gerber of the University of Michigan (at the Ford School of Public Policy). Check out the following books: Voting at the Political Fault Line: California's Experiment with the Blanket Primary (2001); Stealing the Initiative: How State Government Responds to Direct Democracy (2000); and The Populist Paradox: Interest Group Influence and the Promise of Direct Legislation (1999). Gerber is more positive on the initiative than many other commentators. For an attack on the initiative see the work of David Magelby -- specifically, Direct Legislation: Voting on Ballot Propositions in the United States (Baltimore, MD: The Johns Hopkins University Press, 1984), pp. 77-179. (102 pages).

For an international comparative view see: David Butler and Austin Ranney, edited, Referendums Around the World : the Growing Use of Direct Democracy (Washington, D.C. : AEI Press, 1994). Also see their "Over their heads : the growing use of referendums and initiatives around the world." American Enterprise (Washington, D.C.), Vol. 5, no. 3 (MayJune 1994) pp. 58-65. Also see Ranney's "Referendums and Initiatives 1986" in Public opinion Vol. 9, no. 5 (Jan.-Feb.

1987) pp. 44-46 and his "Referendums : New Practice and Old Theory," Institute of Governmental Studies, University of California at Berkeley, [1991] 32 pages.

(4) Finally, Larry M. Bartels of Princeton university is working on a study of elite attitudes toward the initiative process.

I hope this is helpful.

John W. Ellwood

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Date: Wed, 28 Aug 2002 12:53:11 +0100

Law." <LAW-PUBLIC@JISCMAIL.AC.UK> From: Sue Radlett <s.radlett@VIRGIN.NET>

Subject: Re: Legal basis for national referendums]

To: LAW-PUBLIC@JISCMAIL.AC.UK

The full details of the Goodhart book are as follows:-

Title: Referendum

SBN: 85468 063 2

Publisher: Tom Stacey Ltd (1971)

Chapters include "The Referendum in British Politics" and "The Referendum Abroad".

David Radlett (UKM)