Advisory referendums

The standard assumption is that the doctrine of parliamentary sovereignty makes a referendum decision legally ‘advisory’. Parliament legislates to ask the people directly for their view on a specific issue, but the expression of that view merely amounts to providing advice to the legally sovereign decision-maker, which may proceed in any way it wishes.

This approach was evident in the classic work of Dicey on parliamentary sovereignty. For Dicey, the sovereignty of Parliament was continuing, which meant any individual Parliament was unable to ‘bind its successors’.Footnote ⁴⁹ A legal requirement to comply with the result of a referendum would be a clear example of an impermissible limit binding future Parliaments. Yet Dicey’s position did not remain static. Dicey came to defend referendums as one of a number of vehicles (of considerably varying legitimacy) for resisting Home Rule in Ireland.Footnote ⁵⁰ On this approach, the referendum gave the people a veto on major political change which Parliament sought to implement.Footnote ⁵¹ While some believe that this evolution in Dicey’s thought represented a shift of faith from parliamentary to popular sovereignty,Footnote ⁵² it seems better to understand this as an instrumental conversion which also led him to publicly defend armed resistance as a means of preventing the creation of a Parliament in Ireland.Footnote ⁵³ At the least, Dicey’s change of heart concerning the acceptability of referendums indicates that there has never been a time when their position in the UK constitution was a straightforward matter. But, as in many ways, the detail of Dicey’s actual views have come to assume less importance than the attitudes widely associated with his constitutional writing. In that sense, the influence of the Diceyan approach to parliamentary sovereignty, defended by scholars like William Wade,Footnote ⁵⁴ has been in establishing the limited legal status of referendums.Footnote ⁵⁵

Many of the major referendums held in the UK appear to fit this ‘advisory’ model. The devolution referendums in 1997 and 1998, and the referendums on EU membership in 1975 and 2016 were all ‘advisory’ in nature, in the sense that they relied on Parliament to implement decisions which were recommended by the electorate. The referendum decisions themselves had no direct legal consequences. Either further legislation would be required to bring about the changes sought by a majority of voters, or no action was required, in which case the status quo would automatically be preserved. In relation to devolution, the referendums were implemented through the subsequent enactment of separate legislation establishing new institutions and structures of governance for Scotland,Footnote ⁵⁶ for Wales,Footnote ⁵⁷ and for Northern Ireland.Footnote ⁵⁸ In relation to the EU, the 1975 referendum required no action to sustain the continuing membership of the UK. Then following the referendum in 2016, a legislative trilogy was necessary to begin the exit negotiations,Footnote ⁵⁹ to prepare the domestic legal system for the withdrawal of EU norms,Footnote ⁶⁰ and to conclude the final Withdrawal Agreement.Footnote ⁶¹

This position is reflected in the view of the courts. The major constitutional case of Miller,Footnote ⁶² which concerned the involvement of Parliament in the process of commencing the formal Brexit negotiations, was a direct consequence of the decision taken to leave the EU in the 2016 referendum. In its analysis of the significance of this decision-making process, a majority of eight (of a panel of eleven) Supreme Court Justices noted that ‘[t]he referendum is a relatively new feature of UK constitutional practice’.Footnote ⁶³ A referendum decision had no automatic legal effect: ‘The effect of any particular referendum must depend on the terms of the statute which authorises it… the authorising statute may enact a change in the law subject to the proviso that it is not to come into effect unless approved by a majority in the referendum’.Footnote ⁶⁴ In this case, the 2016 referendum ‘did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation… It means that, unless and until acted on by Parliament, its force is political rather than legal’.Footnote ⁶⁵ As a result, the fact that the decision to exit the EU had been taken at a referendum was seen as irrelevant to the Supreme Court’s decision, which was ultimately a question of the extent of the government’s prerogative power.Footnote ⁶⁶ The existence (or as the Supreme Court decided, the absence) of a prerogative power to commence Brexit negotiations – an international act by the government which could (eventually) have had an impact on domestic law – was not changed or validated by the fact that this would have been executive action to implement a direct decision of the electorate. Instead, new legislation by Parliament was required to trigger negotiations with the EU.

As the Supreme Court observed in Miller, it is possible for legislation authorising a referendum to prescribe automatic legal consequences in advance of the decision. While this was not done in the European Union Referendum Act 2015, which established the legal authority for the Brexit referendum, it has been done in other instances. For example, in the Parliamentary Voting System and Constituencies Act 2011, statutory changes to electoral law were prescribed in advance of the referendum, in the same legislation authorising the public vote. A Minister was placed under a legal duty to bring these changes into effect by a statutory instrument if the decision at the referendum was in favour of using a new Alternative Vote system for elections to the House of Commons.Footnote ⁶⁷ Similar provisions were used in the legislation underpinning the first devolution referendums in Scotland and Wales in the late 1970s, albeit requiring more than a simple majority of those voting in the referendums to authorise a Minister to make an order bringing these new systems of governance into effect.Footnote ⁶⁸

Yet even where legal consequences automatically flow from a decision, as set out in the authorising statute, as a matter of constitutional principle these decisions are still technically ‘advisory’. For while a Minister may be placed under a statutory duty to make an order bringing about specified legal changes, the sovereignty of Parliament means that the legislature would still possess the lawful authority to reverse or repeal these duties if it did not want the referendum result implemented. This reality can be recognised in the arrangements made for the prescribed implementation of referendum results: the 1978 Acts discussed above provided that a draft commencement order must be laid before and approved by resolution of both Houses of Parliament before it could have legal effect. Further, given the legally unlimited law-making power of Parliament extends to authorise retrospective legislation,Footnote ⁶⁹ it is difficult to imagine any statutory mechanism for automatic implementation of a referendum result which could not be overturned using legislative sovereignty. There would, of course, be significant political costs to reversing a referendum decision in this way. As the Supreme Court noted in the Cherry/Miller case considering the legality of Prime Minister Boris Johnson’s five-week prorogation of Parliament, in relation to the 2016 EU referendum: ‘Technically, the result was not legally binding. But the Government had pledged to honour the result and it has since been treated as politically and democratically binding. Successive Governments and Parliament have acted on that basis’.Footnote ⁷⁰ Any move to avoid implementing a referendum result, especially where the consequences had been set out in advance in an authorising statute, would only increase the sense that political and democratic constraints had been disregarded.

Adopting a wider constitutional perspective, we must therefore question the ‘advisory’ status of referendums. Referendums are complex decision-making mechanisms due to their democratic character as a direct expression of the will of the (voting) people. Their constitutional position is more than simply a reflection of their formal legal status: decisions taken at a referendum have an overriding moral-political authority in a democratic state. If a constitutional system is to be founded on democracy, referendums acquire a constitutional authority by virtue of this normative underpinning of the system – they represent an expression of the popular will which is essentially irresistible. This is not due to their legal force, although of course part of the legitimacy of a referendum stems from its basis in law, and the need for it to be held in accordance with the law. Instead, decisions taken at a referendum cannot merely be disregarded, because of their structural and normative grounding in the rules and values of the political constitution. This arguably gives an even greater weight to the outcome of a referendum, extending beyond that which can be formally attributed to a decision-making process by legal norms. The entrenched authority of the devolution settlement, for example, is in significant part a product of the fact that this democratic scheme was approved directly by the peoples of Scotland, Wales and Northern Ireland respectively – the legitimacy and endurance of the UK’s devolved system of government is underpinned by the popular approval derived from these referendums.

The ‘advisory’ status of a referendum decision therefore has a number of aspects, depending on whether it is considered from a purely legal or wider (political) constitutional perspective. Yet even the legal status of referendums is more complex than might be expected given the enduring centrality of the sovereignty of Parliament. For there are ways of understanding sovereignty which allow a degree of binding legal force to attach to a procedural requirement like the need for a referendum to be held. There are also a growing number of practical examples of the UK Parliament enacting legislation which appears to make compliance with the outcome of a referendum a necessary part of the legal process for making certain decisions.

Binding referendums

The extent to which referendums can become a binding part of the legislative process has been the subject of much academic debate. The traditional Diceyan position that a sovereign Parliament cannot bind its successors would prohibit any alteration of the legislative process, whether to incorporate a referendum requirement or any other additional procedural step.Footnote ⁷¹ This general position was challenged by Jennings and Heuston. These ‘manner and form’ theorists argued that one Parliament could require a future Parliament to follow an alternative law-making process – or a new ‘manner and form’ for the lawful enactment of legislation.Footnote ⁷² This would be a legitimate exercise of Parliament’s legally unconstrained sovereign authority as long as it was: (i) a procedural change to the future legislative process, rather than an absolute substantive limit on the power of its successors; and (ii) established in an Act of Parliament which was enacted in accordance with the law-making process for the creation of valid statute law in operation at the time. For those defending a ‘manner and form’ approach to parliamentary sovereignty, this was not about one Parliament ‘binding’ or constraining its successors, but rather about establishing that the law-making process itself was not ossified, or immunised from legitimate alteration by the sovereign (and democratic) law-making institution. On this approach, the traditional law-making process which requires the assent of the House of Commons, House of Lords and the Queen deserves no special sanctity, becoming as open to legislative reform as any other element of the constitution.

This ‘manner and form’ approach to parliamentary sovereignty has received renewed support as modern developments have prompted us to reconsider the blunt Diceyan approach to legislative power. Indeed, given the explanatory force of the ‘manner and form’ theory in relation to a range of modern legislative developments, including the incorporation of EU law into the UK’s legal system, it should arguably now be seen as the new orthodoxy of parliamentary sovereignty.Footnote ⁷³ Against the general backdrop of this changing understanding of parliamentary sovereignty, the legal status of statutory referendum requirements raises special challenges. For even some who support a conception of parliamentary sovereignty which permits the legislature to establishing modest changes to the ‘procedure and form’ for law-making continue to have doubts about whether binding referendum requirements may be established.

Goldsworthy, for example, has defended the idea that Parliament can make some binding alterations to the future legislative process, yet argues that referendum requirements fall beyond the scope of what is permissible. For Goldsworthy, changes to the legislative ‘procedure and form’ can be enacted by a sovereign Parliament as long as they ‘do not diminish Parliament’s continuing substantive power to legislate’.Footnote ⁷⁴ Binding referendums requirements establish a ‘veto’ over decisions otherwise made by Parliament,Footnote ⁷⁵ which Goldsworthy suggests is an unacceptable constraint on sovereignty: ‘by forbidding Parliament to enact law without the approval of an external body – namely, the electorate – it plainly limits its substantive authority’.Footnote ⁷⁶

I have argued that this account takes an unnecessarily narrow view of the scope of Parliament’s power to enact manner and form requirements for two main reasons. First, because parliamentary sovereignty does not require us to preserve Parliament’s ‘substantive power to legislate’. This doctrine concerns the existence of legislative power which is legally unlimited, but it does not require that this power can be easily exercised. Legislative sovereignty may be constrained in many ways, by moral, political, and practical factors, among others. Parliamentary sovereignty is about potential capacity rather than actual capability: what is possible, rather than what can actually be achieved. A referendum requirement may make it harder for Parliament to legislate, but as long as it does not make it impossible, it is compatible with this doctrine.Footnote ⁷⁷ Second, it seems wrong to regard the electorate as an external body in possession of a veto over legislation. The authority of Parliament, and its claim to sovereignty, are based on the democratic character of the House of Commons. While the relationship between the people and their elected representatives is complex, the preferences of the electorate must already be a central consideration in a democratic legislative process. A referendum requirement can therefore be understood to represent the legislature requesting a specific affirmation of its general mandate to legislate in relation to a particular topic. In other words, a referendum requirement is a very special kind of manner and form condition – in giving a direct role to the electorate, it formalises what is already indirectly and politically relevant to the legislative process, rather than inserting a new alien perspective into the process of enacting statute law.Footnote ⁷⁸

Goldsworthy does accept that a change in ‘the rule of recognition’ underlying the UK constitution could alter our current understanding of parliamentary sovereignty, to the point where binding referendum requirements may be imposed.Footnote ⁷⁹ Yet it difficult to know how we could judge whether this had occurred – it might require near impossible questions to be answered by the courts (on the basis of very little legal evidence),Footnote ⁸⁰ and create considerable uncertainty about the status of any relevant statutory referendum requirement.Footnote ⁸¹ The prospect of such an open assessment being decisive in establishing the binding (or otherwise) status of a statutory referendum requirement also inevitably raises challenging normative questions. Young has argued that to require a shift in the underlying constitutional consensus concerning the status of referendums may ‘minimise some of the damaging effects of populism’,Footnote ⁸² by ensuring that the authority of representative institutions is not automatically subjugated to direct democratic decision-making. There is certainly a good democratic argument against the entrenchment of referendum requirements, which removes any future room for manoeuvre for the legislature by making the repeal of such a requirement itself conditional on a referendum first being held. Yet this need for caution should ultimately be a matter of political judgement, rather than rejected as a legal impossibility.Footnote ⁸³ Where the sovereign Parliament voluntarily opts to make its legislative power exercisable according to new procedures, and captures that decision in statute, it is difficult to see why this choice should be dismissed or diluted by other constitutional actors.

This debate is not simply academic, for Parliament has in two contexts now enacted ‘binding’ referendum requirements of exactly the sort in question. First, in the context of the UK’s relationship with the EU, Parliament enacted the European Union Act 2011, a wide ranging statute which sought to make certain decisions to pass new powers or competences to the EU conditional on approval in primary legislation and at a national referendum.Footnote ⁸⁴ This major constitutional experiment was never ultimately tested, as none of the EU Act’s referendum requirements were ever triggered before the legislation was repealed upon the UK’s exit from the EU.Footnote ⁸⁵ Nevertheless, prior to this, Parliament did establish a consistent pattern of legislative behaviour based on explicit compliance with the non-referendum procedural conditions established by the 2011 Act,Footnote ⁸⁶ and when called on to consider the extent of the referendum requirements, the courts did not dismiss these rules as beyond the scope of the legislature’s power.Footnote ⁸⁷

Second, we have seen growing use of statutory referendum requirements in the context of devolution. The Northern Ireland Act 1998 has included a statutory referendum condition since the modern devolution arrangements were established, mirroring a provision contained in older legislation concerning the governance of Northern Ireland.Footnote ⁸⁸ By section 1(1) of the 1998 Act, a change to the status of Northern Ireland cannot occur without being approved at a referendum of the people of Northern Ireland. This legislative constraint is accompanied by a statutory obligation in section 1(2), which requires the UK government to give effect to a referendum decision for Northern Ireland to leave the UK and join a unified Ireland. Related provisions have more recently been incorporated into Scottish and Welsh devolution law. These provisions do not establish a standing process according to which Scotland or Wales might exit the UK, but instead declare the permanence of the relevant devolved legislatures and governments, which ‘are not to be abolished except on the basis of a decision of the people of Scotland [or, as applicable, Wales] voting in a referendum’.Footnote ⁸⁹ These provisions are perhaps moderated by some of the associated statutory language, which indicates that their purpose is ‘to signify the commitment of the Parliament and Government of the United Kingdom’ to the relevant devolved institutions. Yet while this may indeed be the purpose of these permanence clauses, their effect appears to be to establish a legal requirement that the UK Parliament could not legislate to abolish the Scottish Parliament, Welsh Senedd, or either devolved government, without it having been approved at a referendum in the relevant nation.

All of these ‘binding’ referendum requirements remain as yet untested. They are not entrenched, and the repeal of the EU Act 2011 indicates that what a sovereign Parliament can create can also be removed. But this does not mean that the EU ‘referendum locks’ were not binding while they remained in force. The clauses concerning the abolition of the devolved institutions may seem equally unlikely to be activated. Yet this is also part of the justification for understanding parliamentary sovereignty in such a way as to permit the creation of binding procedural limits – if it means statute law can better reflect the constitutional reality that it would be unimaginable for the UK Parliament to try unilaterally to remove the institutional foundations of devolved power in Scotland and Wales without popular approval in those nations, then this demonstrates the advantages of taking a flexible and functional approach to the scope of legislative power. Recent debates about whether a similar statutory provision might be used to embed UK commitments to the rights of EU citizens after Brexit show that our constitutional practice is moving beyond the idea that referendums must sit outside our mandatory law-making processes.Footnote ⁹⁰ In the aftermath of Brexit, the referendum requirement in the Northern Ireland Act may well be engaged if a reunification referendum is to be held – there can be no doubt that this legal commitment has a definitive role in shaping the process which would need to be followed for Northern Ireland to exit the UK.

This period of experimentation with binding statutory referendum requirements gives a clear prompt that parliamentary sovereignty should now be understood to accommodate such procedural change to the legislative process. The integration of referendums into the law-making process is contributing to important shifts in UK constitutional law. There remain questions about this trend: we have seen relatively creative experimentation with referendum requirements, but this has arguably been driven by a desire to send various political signals. The referendum conditions created could either be viewed as unnecessary – because they concerned decisions not realistically being contemplated, such as the transfer of further powers to the EU in 2011, or the abolition of the Scottish and Welsh devolved institutions in 2016 – or statutory placeholders to reconcile multiple competing positions at once, as in the reflection of both unionist and republican preferences in the process set out in the Northern Ireland Act 1998. Is this uncertainty inevitable, and evidence of the resilience of traditional understandings of parliamentary sovereignty, whereby the legislature ‘cannot bind its successors’ – can ‘binding’ referendums exist in statute only if they cover circumstances which never materialise, so that in practice no-one is ever really ‘bound’? Or is this simply evidence that the UK’s experimentation with statutory referendum requirements is still nascent, and more systematic and testing use of such provisions is still to come?

What does seem clear is that use of referendums in the UK has moved beyond basic ad hoc deployment in circumstances defined contemporaneously by the government of the day. Referendums can no longer necessarily be seen as simple, singular, or limited legal mechanisms. There is a real diversity in their use, and a complexity to their status in law, regardless of whether they fall into the technical category of ‘advisory’ or ‘binding’ – indeed, the differences between them show that their formal legal status is just one part of their authority. Theoretically, both types of referendum are ultimately vulnerable to parliamentary sovereignty, yet in different ways both are resistant to parliamentary sovereignty as well. This may be more a matter of degree rather than kind, with the legal force of the outcome of a referendum just one part of a more complex constitutional mix of legal, political and moral considerations. As a result, we must look beyond the legal status of referendums in the UK, and consider their broader constitutional impact, which is similarly complex.

Authority

In the manner they are incorporated into the UK’s constitutional framework, referendums can have a potentially explosive effect on the character of authority within the state. In contrast to the regular authority of the legislative, executive and judicial organs established according to a standard constitutional distribution of powers, referendums have an irregular authority. When a decision is made by the electorate at a referendum, that decision is taken outside the established constituted powers. This happens sporadically rather than with any particular consistency, which compounds the irregular nature of what is occurring: the traditional constitutional organs are (at least in terms of the actual substantive decision to be taken) no longer the place where the authority to resolve a matter resides, albeit only for a particular matter at a particular (but difficult to anticipate) moment in time. The irregular authority of referendums means they are therefore potentially disruptive of both the political establishment and political expectations. This disruptive effect is not, of course, inevitable in practice. But it exists in principle, and – as in the 2016 Brexit referendum – becomes evident when the decision taken is to reject that status quo or the preferences of the political actors who must implement the decision.

The tension here between regular and irregular authority has a number of dimensions. First, when a referendum produces a result which usurps the expectations of established political actors, it still falls to them to implement the decision in exercise of their regular constitutional authority. Even if a referendum decision has pre-defined legal effects (not normally the case in the UK), the government and legislature will still need to take action in response to whatever changes in law or practice are instigated.Footnote ⁹¹ For complex, multifaceted, open-ended questions like how to leave the EU, this leaves the regular political actors simultaneously constrained and in possession of huge discretion, which may be difficult to reconcile. Second, there is no standard timetable or ‘electoral cycle’ to respond to such a democratic expression of will. The consequences of a referendum decision may be easily and swiftly dealt with, or it may have effects which linger and define the priorities of the established constitutional actors for an unknowable period of time. In that sense, the exercise of the regular authority of the core political actors may be dominated by the irregular authority of the referendum decision for a length of time which is beyond their control. It may be left to the established constitutional authorities to define the process for delivering the referendum outcome, but that process may require revision and extension in ways which are difficult to foresee at the outset. The creation of section 13 of the European Union (Withdrawal) Act 2018 to codify and legalise the role of the UK Parliament in the approval of any Withdrawal Agreement, by establishing the need for a ‘meaningful vote’, is a clear example of the way in which the legislature and executive had to reshape the process of responding to the 2016 referendum, with important but also ultimately inconclusive effects.Footnote ⁹²

The impact of the irregular authority of a referendum on the regular authority of the established constitutional actors is not inherently negative. No political system could ever function in a seamless fashion without unpredicted events or flawed delivery of planned goals: some irregularity must be expected. But that this irregularity emerges at the heart of the state’s authority makes it particularly significant, given the regularity of the established constitutional institutions is an essential part of what generates their power. It is for this reason that referendums have the potential to disrupt the political establishment and their expectations to such major effect, something the UK is only just beginning to come to terms with following the 2016 decision to disconnect from the EU. Yet there are also positive aspects to this impact on constitutional authority – in principle a referendum provides a route for different inputs into what may be an overly closed political system, and alternative routes to accountability if political decisions are subject to direct popular confirmation. However, these schisms in authority can also be deployed as justification for subversion of the established political institutions: the unconstitutional attempt to prorogue Parliament to limit its ability to prevent a ‘no deal’ Brexit by 31 October 2019, provides a clear example of an attempt by the government to exploit the referendum’s irregular authority to its own advantage in a dispute between the established institutions.

Sovereignty

A further constitutional impact of referendums is on our understanding of sovereignty. Sovereignty concerns the location of ultimate power within a constitutional framework. The UK constitution is organised explicitly around the fundamental idea of the sovereignty of Parliament, yet referendums seem to contradict this, establishing the sovereignty of the people.Footnote ⁹³ The combination of the atypical character of the UK’s constitution and the increasing resort to decision-making at referendums therefore appears to generate a clash between two different conceptions of sovereignty: parliamentary sovereignty and popular sovereignty. This apparent inconsistency has been an influential source of hostility towards the use of referendums in the UK. Yet while Dicey, the leading defender of an orthodox understanding of parliamentary sovereignty, came to endorse the idea of referendums when it was politically expedient for him to do so,Footnote ⁹⁴ modern accounts which juxtapose parliamentary and popular sovereignty continue to exist, and have the potential to obscure rather than reveal.Footnote ⁹⁵

There is no doubt that referendums raise challenging questions about the location of ultimate power, and where the final say on any decision resides in our political system. These questions run deeper than debates about the formal legal status of a referendum outcome, and whether the result of such a process is binding or advisory. In principle, a legally unlimited sovereign Parliament can always overrule a decision reached at a referendum, or reverse any automatic legal consequences which have been prescribed to flow from its outcome. Yet this is to presume that the most important question in relation to sovereignty is how we resolve a competition between two entities for the formal final say. Instead, there is a need for more sophistication relating to different understandings of sovereignty, distinguishing between this as a legislative concept, as compared to a (relational) political principle.Footnote ⁹⁶

From this perspective, we can see that rather than an incompatibility between parliamentary and popular sovereignty, instead there is significant compatibility these two concepts, because they are primarily orientated to different contexts. Parliamentary sovereignty is an intra-constitutional principle: it determines the locus of law-making power within the UK constitution, and establishes an institutional hierarchy in which Parliament has primacy over all other official actors. Popular sovereignty, in contrast, is an extra-constitutional principle: it reflects the normative political value of democratic government. But the abstract normative idea that government must be democratically elected to have legitimacy will always need to be institutionalised in specific constitutional arrangements within a political system. Parliamentary sovereignty is one way to institutionalise the ideal of popular sovereignty, because it recognises that the UK’s legislature has the strongest democratic credentials, in relative terms, when compared to the executive and the judiciary. But, equally, it is not the only way of doing so, nor indeed is it the most common way, given the overwhelming prevalence of codified constitutions in states around the world. A constitutional system in which the legislature is limited by legal constraints enforced by the judiciary has no greater claim to be founded on popular sovereignty.Footnote ⁹⁷ Instead, these differences of constitutional form and institutional hierarchy simply show there are multiple models which give functional expression to the abstract notion of democratic government.

However, the conceptual compatibility of parliamentary and popular sovereignty, understood as principles operating on different planes, one intra-constitutionally and one extra-constitutionally, does not mean there is no space for tension. Technicalities can be masked in intense political debates, and the ideas of parliamentary and popular sovereignty may be pushed beyond their respective constitutional planes. Parliamentary sovereignty may become a normative ideal reflecting a preference for representative government, rather than simply an intra-constitutional doctrine concerning the location and nature of legislative authority. Popular sovereignty may be pulled into operation as a norm to challenge decisions made in the established constitutional institutions, despite its abstraction and lack of specificity about how a political system ought to be organised. We have seen expansive conceptions of both principles in constitutional debates about the implementation of the Brexit referendum, whether that is parliamentary sovereignty being stretched to signify the general (rather than legislative) supremacy of the legislature,Footnote ⁹⁸ or popular sovereignty being exploited to attack the hung Parliament of 2017-19 for blocking the will of the people.Footnote ⁹⁹ It is also possible for the popular sovereignty of groups within the state to be contrasted against the sovereignty of the central Parliament.Footnote ¹⁰⁰ But the popular sovereignty of a national or sub-national group within the state would still eventually need to be institutionalised in specific constitutional arrangements, whether parliamentary or otherwise. As a result, this is better understood as a claim for the sovereignty of the people within one state to be divided in two, which is not something that a legal doctrine of legislative sovereignty can (or should) be understood to prevent.

Whether instrumentalist or otherwise, contrasting parliamentary and popular sovereignty in such ways hinders a clear understanding of the categorical distinction between these ideas. There is little use in complaining, however, about conceptual imprecision in heated political debates, and whether relating to the Brexit process or a Scottish independence referendum, these existential questions have a special capacity to give particular prominence to matters of sovereignty. Yet parliamentary and popular sovereignty do not represent irreconcilable power claims, and to see them as such can generate uncertainty about how political institutions should respond to referendum decisions, potentially exacerbating both stasis and division. In contrast, when we recognise the complementary character of these different principles, we can see the variability which is possible in constitutional design. There is a complex relationship between the people and their elected representatives, with no need to choose definitively between them. Instead, a more sophisticated understanding of the alternative realms in which different sovereignty claims operate allows us to think about the situations in which more or less direct popular decision-making will be justified. In this sense, we can avoid a preoccupation with false dichotomies of sovereignty, and focus on determining which kinds of decisions ought to be taken following the collective input of the electorate.

Democracy

Finally, referendums also have a significant impact on the form of democracy which defines our constitutional systems. They constitute a departure from the representative model of democracy which remains dominant across democratic political systems, in providing a means for the people to take a decision directly, rather than indirectly through their chosen representatives. The existence of different democratic processes for decision-making raises crucial questions about the identity of the optimal decision-maker – who should decide what, and when? As we have seen, it is constitutionally permissible for the legislature to pass decisions on to be taken directly by a majority of the electorate, for this is simply one among a number of ways of institutionalising the idea of popular sovereignty. But in what circumstances should this be done? This is not a standard or technical decision about what decision-maker is best equipped to make a choice. Instead, it goes to the core of our understanding of democracy, and the meaning of government by and for the people. For some, the people should choose their representatives and trust their skill and judgement in taking key political decisions.Footnote ¹⁰¹ For others, this is to circumvent the actual opinions of the people, and more direct, specific instructions are required on an ongoing basis to ensure the actions of the governing elites reflect the views of the wider population.Footnote ¹⁰²

This normative clash between representative and direct democracy is in practice irresolvable. There is no absolute way of deciding which conception of democracy is superior, or in what circumstances, or for what categories of decision, these differing democratic processes should be used. The scale and complexity of the modern state is such that the overwhelming majority of decisions are taken on a representative basis, whether by the Parliament which is (at least in the Commons) directly elected, or by the government which derives its democratic mandate indirectly from the composition of the legislature. In the face of this reality, and in the absence of any definitive criteria establishing the ideal parameters of representative and direct democracy, the challenge is to move beyond simplistic claims of the superiority of either model. Instead, the constitutional dilemma is how to exploit the potential offered by the effective combination of these different democratic processes. We should avoid the reductivism of presenting this as a clash between two competing ideals, and rather focus on ways of structuring their interaction which generate complementarity. This is especially the case given the complexity of the relationship between representative and direct democratic processes: in the UK the representative institutions in general have the power to determine when a matter should be put to a direct democratic decision and how to implement it, yet at the same time the authority of a specific choice made by the electorate will be immense.

Against this backdrop, the key question is how the constitution should determine when decisions should be made directly by the people, usually in the form of the referendum. As we have seen, in the UK referendums have largely been reserved for decisions which would prompt significant constitutional change. But how do we decide when decisions are of the requisite degree of constitutional sensitivity? And should referendums only be for questions of ‘major constitutional significance’ to begin with? If this is simply about different processes for decision-making, a test of constitutional significance may not be appropriate to trigger potential recourse to direct democracy. There is nothing inherent in these different democratic processes which suggests that direct democracy should be preserved only for an exclusive category of ‘higher order’ decisions, however they might be defined. Indeed, rather than focusing exclusively on major, complex, constitutional questions in referendums (at least at the national level), logic might suggest that simple, more mundane decisions might also be suitable for direct democratic resolution. This is not simply to expand the possible scale of direct democracy in the UK’s political system, but also to reconsider the type of decisions which might be appropriate for the electorate to determine directly.

If this path is followed it might challenge us to rethink the idea of democracy as it operates in our political system. There could, of course, be many objections to such a change in approach. Regular referendums might be difficult to deliver or institutionalise. They might be claimed to lead to electoral disinterest or voter fatigue. If offering a decision to the electorate inevitably requires it to be simplified to a point where complexity is subsequently unavoidable at the implementation stage, direct democracy may seem to be a mirage. If the representative institutions have the initiative as to when a referendum should be held, it may become an elite tool for policy confirmation. And if those decisions can then be appropriated by representative institutions to claim a reinforced mandate, such as Prime Minister Boris Johnson’s ‘people’s government’,Footnote ¹⁰³ the extent to which direct democracy really represents some break with the dominant paradigm of representation may be open to doubt.Footnote ¹⁰⁴

The alternative view, however, is that broadening our conception of different forms of democratic power allows flexibility in the design of decision-making processes. Direct democracy in general, and referendums in particular, can be organised in different ways for different purposes – as is clear from the diversity of national experiences, they may be confirmatory, consultative, agenda setting, and more.Footnote ¹⁰⁵ And this can provide different avenues in the constitution for different groups or constituencies to shape policy making, or indeed to take authoritative decisions, on constitutional matters and beyond. As a result, the use of referendums in the UK constitution does not generate an irresolvable clash between direct and representative democracy, but it does prompt us to reconsider the suitability of different democratic processes for various categories of decision. There are no easy answers (whether before or after the Brexit referendum) but to recognise the variability within the idea of democracy is surely better than either indulging in complacency about our representative democratic model, or assuming direct democracy should only be a last resort when faced with exceptional questions.

Ignored, embraced, accommodated: a UK Referendums Act?

How might the position of the referendum in the UK constitution change in the future? There are a number of possibilities. In broad terms, we might see three potential options: the referendum might be ignored, embraced or accommodated.

First, for some Brexit may be a temptation to call for no more referendums in the UK.Footnote ¹⁰⁸ Yet even if we set aside the normative debate about whether referendums are an important way of passing key decisions to the people directly, or a crude tool which politicians can manipulate for their own ends (or both), the referendum now seems too well established in our constitutional life to be ignored. While long running debates about a second referendum on Brexit are now over, the consequences of Brexit have already reignited debate about a second Scottish independence referendum,Footnote ¹⁰⁹ and even a referendum on the reunification of Ireland.Footnote ¹¹⁰ As we have seen, the referendum is incorporated into the Northern Ireland Act 1998 as an essential part of the process of changing the status of Northern Ireland, as well as featuring in other parts of our devolution legislation. It is equally impossible to imagine any future campaign for re-entry to the EU being able to avoid a commitment to a referendum on any such plan, given the way the decision to leave was taken. The moral appeal of passing a difficult decision directly to the electorate, alongside the potential political utility of the referendum as a means to legitimise major change, means this mechanism is likely to continue to feature in the toolbox of those in power. The referendum may also provide a useful vehicle for those who wish to slow down or create obstacles to reform – it is easy to imagine opponents of House of Lords or electoral reform insisting that a government elected with a manifesto commitment to change these aspects of the constitution would still require the specific, additional approval of the people to implement those policies. In that sense, even if we try to ignore referendums, an implicit and inchoate framework concerning their use will continue to function regardless.

The second option is to think about how to embrace the advantages of referendums while avoiding the pitfalls. While this presents challenges, there are also virtues which can be discerned from the constitutional impact of referendums which we should not too readily dismiss. In relation to authority, we see referendums have the potential to subvert the expectations and priorities of the established institutions. In relation to sovereignty, we see the varied realities of modern power, and the need to ensure popular perspectives are addressed before reaching the point where sections of the population are alienated from, and use their votes to confront and override, the political consensus. In relation to democracy, the Brexit process and the political response to the referendum have shown that the limits of representative democracy are just as significant as the limits of direct democracy.

The problem with the UK’s current approach to referendums may be that we focus all energy and attention on one politically canonical decision, with little serious preparation for that moment, and no follow up opportunities for the people to directly influence the way their choice is being implemented. An all-or-nothing approach of this kind is arguably reinforced by flawed narratives which suggest the referendum is a foreign or atypical constitutional device, and inevitably raises expectations to a level which any decision-making process would struggle to meet. If the referendum is now an established element of UK practice, we might try to defuse this pressure in a constitutional framework which offers greater (although inevitably not complete) regularisation of its place in our political system.

How might this be done? We might consider formalisation of the appropriate relationship between direct and representative democratic inputs, by attempting to determine more precisely the circumstances in which referendums should be held. Despite the scepticism about this encountered earlier in the paper from both the House of Lords Constitution Committee and the Independent Commission on Referendums, it may be time to at least map out how more certainty could be achieved. The most obvious way this could be done would be through a new Referendums Act. This could include establishing a definitive list of major constitutional events which required approval at a referendum. But it would not need to be limited to this. A Referendums Act could be drafted to establish binding referendum requirements, but also a process of legislative initiative through referendums. It could present an exhaustive list of circumstances in which referendums were necessary, or supplement this with a set of evaluative criteria to be used to determine the suitability of a referendum in novel situations. It could empower a new institution (perhaps a Referendums Commission) to issue guidance about whether those criteria had been met. Regularisation in statute need not mean inflexibility or a narrow focus on creating popular vetoes for constitutional change. A Referendums Act would not need to be entrenched, and could still be altered (and therefore perhaps circumvented) by future Parliaments – yet the very act of creating such legislation, if underpinned by adequate political consensus, would mean that it could establish a clearer framework with the authority to shape decisions concerning when a referendum should be held (or not), for what purpose, and with what effects. This would not necessarily mean an expansion of referendums to new circumstances – the breadth of situations covered by such an Act would be a matter of great importance, and subject to much disagreement. Yet such statutory reform might provide greater coherence to our current practice, and at the very least would provide an opportunity to consider the big questions of principle as much as the technical questions regarding our use of referendums.Footnote ¹¹¹ While the former questions are the most difficult, they are also the ones which we have failed to explore in any systematic way.Footnote ¹¹²

In addition to questions about whether these ambitions could ever attract sufficient political support to be delivered in practice, there are two deeper objections. First, would the creation of a Referendums Act make the decision to call (or not to call) a referendum justiciable in the courts? Primarily this would be a matter of legislative design. The practice of strictly constraining the timetable and grounds on which a referendum result can be challenged in the enabling legislation is well established.Footnote ¹¹³ The possibility therefore clearly exists for Parliament to enact provisions restricting litigation challenging a decision to hold a referendum under the terms of such an Act, or even to impose an ouster clause to prevent legal challenge to such decisions outright.Footnote ¹¹⁴ The intensely political nature of a decision to hold a referendum would provide a clear justification for restriction of judicial review in this context. Indeed, this is something which may be welcomed by the judiciary, who have already shown some reluctance to become involved in assessing the legality of referendum processes unless explicitly required to do so. For example, as the Court of Appeal indicated in R (Wilson) v The Prime Minister, a challenge to the legality of the Brexit referendum:

The extent of any judicial oversight of such decision-making would therefore be a choice for Parliament. And a Referendums Act which did not increase the role of the courts in this sphere would not be lacking in purpose – indeed, the formalisation of expectations and institutionalisation of a clearer political process concerning referendum decisions which such legislation might offer would arguably be undermined by the uncertainty judicialisation could generate.

The second constitutional objection to a Referendums Act concerns the potential impact on parliamentary sovereignty. Could Parliament bind its successors to embrace such a framework, or its application to specific circumstances? Would the systematic provision for referendums in specified situations constitute a final, decisive shift to a constitutional system based on popular sovereignty? Should such a Referendums Act be firmly entrenched to be meaningful? These questions raise important issues, but also arguably remain rooted in an understanding of parliamentary sovereignty which is now outdated. The vast flexibility of Parliament’s legislative power is key. Parliamentary sovereignty establishes unlimited options for future reform, which allows us to think radically rather than see the traditional doctrine as a barrier to change.Footnote ¹¹⁶ Parliament’s changing legislative practice must guide our understanding of its sovereignty, instead of viewing sovereignty as a constraint on Parliament’s legislative practice. From that perspective, the starting point must be that a Referendums Act is possible, it could have an impact on the decision-making process applicable to future Parliaments, but would be contributing to an existing pattern of legislative engagement with referendums, and not displacing legislative sovereignty. Much would depend on the details, but the openness of parliamentary sovereignty leaves considerable scope for the further integration of referendums into the UK constitution. Parliamentary sovereignty is therefore neither a normative nor a legal barrier to using legislation to redesign the constitutional framework in which UK referendums sit.

Perhaps enacting a Referendums Act or pursuing any other elaborate reform is unachievable. Political consensus about the role of referendums may not exist, and legislation may not be regarded as the right vehicle for such reform. If that is the case – whether right now or for the longer term – we encounter the third option for the future of the referendum: accommodation within the UK constitution. This may seem the most likely path, and means we will continue to approach referendums on an ad hoc basis. Some consistency in the circumstances of their usage may continue to develop over time, but our constitutional deployment of referendums would be generally unplanned and reactive. A second independence referendum in Scotland provides an obvious example of such constitutional accommodation of referendums. It is widely accepted that a referendum will be necessary to decide the question, and a lawful referendum process will be required to generate legitimacy for the ultimate result.Footnote ¹¹⁷ It may also be argued that certain democratic events would definitively demonstrate a popular mandate for a second referendum to be held, such as the re-election in Scotland in 2021 of a Scottish National Party government on a manifesto promising such a vote. Yet there is no clarity about whether this sets the bar too high, as the current SNP government have suggested, in arguing that the UK’s withdrawal from the EU contrary to the wishes of a majority of the Scottish electorate already provides a sufficient reason for another referendum.Footnote ¹¹⁸ Or whether the UK government could simply continue to refuse to engage in negotiations concerning a second referendum at all, on the basis it was a ‘once in a generation event’.Footnote ¹¹⁹ This standoff is unlikely to lead to stasis, but instead reopen further challenging questions about whether the Scottish Parliament has the legislative competence to call an ‘advisory’ referendum in a different sense. For even if to call such a referendum was lawful, the result of that vote would be one which the Scottish legislature could not unilaterally enforce, at least within the parameters of our current constitutional system.Footnote ¹²⁰

The accommodation of referendums may seem rooted in political and constitutional incrementalism, avoiding major structural reform and even loose commitments, in favour of responding to challenges if and when they arise. There is value in such an approach, which can still be improved by better regulation of the way referendums are conducted, and connecting referendums with wider processes of democratic deliberation.Footnote ¹²¹ However, considering the alternatives shows us that constitutional accommodation need not be the inevitable approach to referendums in the UK. The obstacle to a fuller embrace of referendums is not the incompatibility of this mechanism with our constitutional system, but an underlying uncertainty of constitutional vision. We need to know what we want from our democratic system to know how the constitutional framework can support this. The accommodation of referendums serves the useful purpose of keeping open the normative question of the constitutional desirability of referendums, whereas embrace (or indeed rejection) does not. It may do so pending some further reflection on the constitutional position of referendums, or it may be an end state in itself. Yet even if constitutional accommodation is dominant at present, and likely to remain that way, we must recognise that for greater coherence in the use of referendums in the UK, there will be a trade-off: formalisation and increased commitment in a Referendums Act must be based on a political choice to accept a reduction in manoeuvrability. This would align our approach to direct democracy more closely with the type of framework in which our typical representative democratic events occur, although even if referendums are constitutionally embraced, attitudes to them will still have some way to develop before they reflect the embedded political culture which underpins general (and national) elections.