This article first appeared on LexisNexis on 12 February 2016.
Charles Livingstone, partner, and Douglas Waddell, solicitor, in the public law & regulatory team outline the mechanics of referendums in the UK.
How does a referendum in the UK work?
UK-wide referendums are governed by the Political Parties, Elections and Referendums Act 2000 ("the 2000 Act), which sets out a general procedure for their conduct. However, each referendum still requires its own Act of Parliament, as the 2000 Act does not confer any general power to hold them. Such Acts of Parliament can and do amend the basic rules as set out in the 2000 Act. The Act will also specify the question to be asked, on which the Electoral Commission will then give its opinion.
The Electoral Commission regulates the conduct of referendums under the general remit of the 2000 Act. Political parties, individuals or organisations who wish to participate in the referendum may also register with the Commission as 'permitted participants'. The Commission will then choose the official organisations for each campaign from amongst the permitted participants seeking the designation, and provide public funding of equal size to each. Official campaign organisations have the right to televised campaign broadcasts, free postage of a referendum mailshot and the use of rooms free of charge for public meetings - although this is regulated from referendum to referendum. The European Union Referendum Act 2015 ("the 2015 Act) amended provisions of the 2000 Act relating to financing and official campaigns, seemingly to facilitate the involvement of a wider range of organisations and giving the Electoral Commission greater powers over the designation of official campaigns where there are competing organisations.
Campaigns can otherwise raise money independently, with no limit on the amount they can raise or that can be donated by any one individual or organisation. There is, however, a limit on the amount campaign organisations, political parties and permitted participants can spend. In the EU referendum, the official campaigns will be able to spend up to £7 million. The amount political parties will be able to spend will vary depending on their share of the vote at the previous general election, while other permitted participants are limited to spending no more than £700,000. Any person or organisation not registered as a permitted participant may spend a maximum of £10,000. Campaign expenditure is audited by the Electoral Commission and it is a criminal offence for campaign spending limits to be knowingly breached.
There are restrictions on central and local government publishing promotional material during the referendum campaign. Material that puts forward arguments for one campaign or another, or deals with any of the issues raised by the referendum, cannot be published by public bodies within the 28 days leading up to the referendum. It is worth noting, however, that the 2015 Act requires the UK Government to publish information on the outcome of its renegotiation and the UK's membership of the EU no later than 10 weeks before the date of the referendum.
The results of a referendum are counted and announced locally, with each local authority counting votes in its own area. However, the overall result is determined nationally and announced by the Chief Counting Officer, who is the chairman of the Electoral Commission.
What is the history of referendums in the UK?
British politicians have historically been sceptical of referendums due to the implied conflict with the doctrine of Parliamentary sovereignty (Clement Attlee called referendums "a splendid device for demagogues and dictators), although a number of local referendums on the issue of alcohol prohibition were held in Scottish licensing districts between 1913 and 1976. The first referendum of national significance took place in 1973, when Northern Ireland voted to remain part of the UK rather than join the Republic of Ireland. As nationalist voters largely boycotted the event, the vote was almost 99% in favour of the Union on a 58% turnout.
The first UK-wide referendum was held in 1975 on the question of British membership of the European Economic Community (as it then was). The referendum came about as a result of deep divisions within the governing Labour Party on continuing membership of the EEC. In order to avoid splitting his party, the Labour Prime Minister Harold Wilson promised to renegotiate the UK's terms of membership and then put the question of continued membership to a referendum.
Once Wilson had his renegotiated terms, Parliament legislated for a referendum asking "Do you think that the United Kingdom should remain a member of the European Community (the Common Market)? The Government, with the support of Margaret Thatcher's Conservative Opposition, the Liberal party and most of the press, recommended voting to remain. Though many Labour and Conservative rebels campaigned to leave the Community, as did the SNP and the Ulster Unionists, 'remain' secured two-thirds of votes on a 65% turnout.
Two further referendums took place in 1979, on whether to establish devolved assemblies in Scotland and Wales. As a result of backbench dissent, the Labour Government controversially set a threshold requirement that 40% of the eligible electorate would have to vote in favour of change. While an overwhelming majority (almost 80%) voted against a devolved assembly in Wales, in Scotland a narrow majority (just under 52%) voted in favour. However, as this represented only 33% of eligible voters, the referendum did not succeed.
No further referendums were held until 1997, when Tony Blair's Labour promised a program of extensive constitutional reform. Devolution referendums were held in Scotland and Wales, and in 1998 votes followed in London (on an elected Mayor and Assembly) and Northern Ireland (following the Good Friday Agreement), with all four deciding in favour of change. The Scottish referendum was unusual in also asking a second yes/no question, on whether a Scottish Parliament should have limited tax-raising powers. The one significant referendum that did not succeed was in north-east England in 2004, where the electorate rejected a regional assembly (though since 2001 there have also been a number of local referendums on proposals to introduce directly elected mayors, most of which were rejected).
There were no further UK-wide referendums until the 2011 vote on adopting the Alternative Vote (AV) system for UK general elections, per the 2010 Conservative-Lib Dem coalition agreement. Unlike the previous UK-wide referendum, the main party of Government campaigned for a "no vote, and over two-thirds of voters rejected the change. With the two coalition parties disagreeing with each other, the tradition of holding referendums where the Government is divided on a constitutional issue was maintained.
2011 also saw a further referendum in Wales on extending the powers of the Welsh Assembly. While the vote was around 63% in favour, turnout was low at 35%. This may have reflected the relatively technical nature of the question asked, as well as the fact that all major Welsh parties supported the 'Yes' campaign.
Undoubtedly the most dramatic referendum in UK history was the 2014 Scottish referendum, which asked voters "Should Scotland become an independent country? and generated huge interest across the UK and abroad. The importance of the issue and the perceived closeness of public opinion in the last few weeks combined to produce a record UK turnout of over 84%. 55.3% of voters said 'no' to the question, a comfortable (though not overwhelming) majority against independence.
The latest (and, at present, only) UK-wide referendum on the horizon brings matters full-circle, with a second vote on the UK's EU membership to take place 41 (or 42) years after the first. The 2015 Act requires the Government to hold a referendum before the end of December 2017, but the expectation is that a date in 2016 is most likely. The process so far has largely been the mirror image of the 1975 referendum, with a divided governing party and a number of rebels among the Opposition. Whether the result will also mirror the 1975 outcome remains to be seen.
Who is entitled to vote in the EU referendum?
There are no general rules on who can vote in UK referendums, and so the relevant legislation sets the franchise for each referendum. As with the AV referendum, the EU referendum will use the franchise for UK general elections: those over 18 who are UK, Commonwealth or Irish citizens and registered on the electoral roll. However, as with UK general elections, other EU citizens will not be able to vote.
Are there any peculiarities or quirks about UK referendums?
Legally speaking, referendums in the UK are only consultative and not binding, as Parliament remains sovereign. Accordingly, Parliament could, in theory, ignore a referendum result or even legislate for the opposite outcome. Equally, the UK Parliament could overturn legislation approved by referendum at any point in the future, as one Parliament cannot bind another. However, in practice this is highly unlikely.
Some jurisdictions, such as Switzerland and California, provide for referendums to ratify or reject proposed government policies of a relatively everyday nature. However, in the UK referendums are generally only held on questions of significant constitutional importance. This is particularly the case where the issue divides the governing party, though Labour in the 1990s was less divided over devolution than it had been in the 1970s, and the Scottish independence referendum reflected a division between governments (the UK and the Scottish) rather than within them.
Certain other jurisdictions will also impose a turnout threshold or a requirement for super-majority approval before a referendum can succeed. While this was done in the 1979 devolution referendums, the requirement has not been repeated in any subsequent referendum. The standard requirement now appears to be no more than a simple majority.
The franchise for the EU referendum will be extended to peers, who are not otherwise entitled to vote in elections to the House of Commons.
The 2014 Scottish independence referendum used the Scottish Parliament franchise rather than the UK one, meaning Scottish-resident EU citizens were eligible to vote. So, ironically, EU citizens were allowed to vote in a referendum on the future of the UK but will not be allowed to vote in one on the future of the EU.
In the Scottish independence referendum there was initially some debate over whether the Scottish Parliament had the power to legislate unilaterally for a referendum. This was resolved at the time by the UK Government agreeing to grant the Scottish Parliament a limited power to hold one single-question referendum before the end of 2014. That power has therefore not only been used but has expired, and so any attempt by the Scottish Government to seek another referendum would face that same constitutional hurdle.
Any lesser known facts or figures about UK referendums?
Most referendums in the UK have turnouts below that of the average general election. For example, the 2011 AV referendum had a turnout of less than 50%, while the 1997 devolution referendums had turnouts of around 60% - in contrast to around 70% in the 1997 general election. The two exceptions were the 80% achieved in the 1998 Northern Irish referendum on the Good Friday Agreement and the 84% in the Scottish independence referendum, which was the highest turnout ever recorded for an election or referendum in the UK since the introduction of universal suffrage.
Of the 13 significant referendums carried out in the UK so far, six have resulted in a victory for the status quo (or the option closest to it), while seven have recorded a majority vote for change. In most cases, however, the official position of the UK Government has been supported, suggesting that governments do not tend to call referendums unless they are confident of victory. The only clear exception was 2004's vote on a north-east regional assembly. The first referendum on Scottish devolution is something of a half-way house, with a majority of those who voted approving the Government's proposed change but not the 40% of eligible voters necessary for the proposals to actually be put into effect.