It is fair to say that the result of the United Kingdom’s Referendum on continued membership of the European Union is one of the most controversial and fiercely debated topics in modern English Legal History. Rafts of previously silent Constitutional Lawyers have entered the arena to voice their opinions.
This ferocity has been an enduring theme surrounding Referendums since the earliest discussions regarding their introduction. The central pillar of controversy is that Referendums are arguably contrary to the concept of Parliamentary Sovereignty. This is the principle that Parliament, acting by its Members and Lords, can make or unmake any law whatsoever. Theoretically, if Parliament wants to pass an Act that mandates the slaughter of all blue-eyed boys, Parliament can do so. Practically this might present difficulties, but it is correct as a matter of English Constitutional Law.
The greatest advocate of Parliamentary Sovereignty was Constitutional theorist Albert Venn Dicey in 1885. Bizarrely, it was also Dicey who first advocated the introduction of Referendums in an 1890 article, a mere 5 years after the publication of his renowned text on Parliamentary Sovereignty. Dicey believed that Referendums could act as a direct democratic check against the corruption of elected parties. Dicey stated that the people could act as ‘Political Sovereign’.
Dicey wanted a Referendum on the subject of Irish Home Rule to try to defeat Ireland’s attempt to govern itself in the late 19th Century, but he was unsuccessful. In the early 1900s, Members of the Conservative party suggested using a Referendum every time the House of Commons and House of Lords disagreed on a Bill, but this was roundly rejected. Moreover, in 1903 Joseph Chamberlain unsuccessfully suggested a Referendum on the issue of tariff reform. This reform, fittingly, was to be a departure from free trade towards imposing custom duties on foreign imports.
The other main suggestion of this era (again rejected) was made by Winston Churchill in 1910 who recommended a Referendum as a means of answering the question of Women’s Suffrage.
Over the next several decades, the idea of Referendums became increasingly unpopular in England due to their use by dictators as a tool of oppression. By way of example, Hitler held a Referendum in 1934 to effectively give himself ultimate State power. Groups of people were escorted to polling stations by Nazi soldiers and then had to vote in public. Some ballot papers were pre-ticked ‘Yes’ and forgeries were so common in some regions of Germany that the number of votes cast was greater than the total number of people entitled to vote.
The next major suggestion was again made by Winston Churchill in 1945 to answer the question of whether his Second World War government coalition should continue until Japan had been defeated. In response, Clement Atlee described the concept of Referendums as ‘alien to all of our traditions’. In the decades after the Second World War, Referendums were barely mentioned; no issue seemed important enough to warrant a Referendum. Atlee’s sentiment was echoed by Margaret Thatcher in the 1970s, however this did not dissuade Harold Wilson from promising and implementing the first ever UK nationwide Referendum in 1975.
The United Kingdom has only held 3 nationwide Referendums. The first was on 5 June 1975 to decide whether to continue as a member of the European Economic Community (now the European Union) (67.23% Yes), the second was on 5 May 2011 to decide whether to adopt the Alternative Vote system (67.9% No) and, finally, on 23 June 2016, whether to continue as a member of the European Union (51.89% No).
Over the years, there have been various regional Referendums, mostly concerning the devolution of powers to Scotland, Northern Ireland and Wales (notably the Scottish Independence Referendum of 2014 – 55.3% No).
Although nationwide Referendums were firmly rejected in the early 1900s, the argument against them was not as strong for more localised Referendums and these were carried out from 1913. For example, in 1913 local areas in Scotland held Referendums on whether to implement the prohibition of alcohol. Of particular interest is that from 1881 pubs in Wales legally had to be closed on Sundays. In 1961, local areas of Wales were permitted to have a Referendum on whether they wanted Sundays to be ‘wet’ or ‘dry’ and for further Referendums asking the same question to take place every 7 years. Sadly, the Welsh pub Referendums were abolished in 2003.
Finally, since 1972 the people of local Parish areas have been able to call for a local Referendum, called ‘Parish polls’, to answer questions on community issues. These tend to be on local planning concerns and rarely have a turnout of more than a few hundred voters.
It is clear that Referendums are not new to English Legal History but are not by any means entrenched as an English democratic principle. Indeed, a system to govern Referendums was only put in place in 2000. The Electoral Commission oversees the conduct of Referendums and consults on how understandable the phrasing of the proposed Referendum question is. The recent EU membership Referendum has been so divisive that, on hearing a challenge, the High Court has held that Article 50 of the Treaty on European Union (relating to the withdrawal of a Member State from the EU) cannot be used in the UK without an affirmative vote in Parliament.
The UK Government has stated it will appeal this judgment and we will have to wait and see what the appeal decision will mean for the future of Referendums in English Legal History. One thing is certain, party leaders are going to think very carefully before including Referendum promises in their political Manifestos in the future.