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Regulating Future UK Referendums

The Brexit Referendum
Written by Robert Jackson

It remains to be seen whether the result of the Scottish Assembly election on May 6th will enable the SNP to proceed with its plans for an unconstitutional second referendum on Scottish secession. But the arrangements for future UK referendums in general raise important issues, notably in Northern Ireland, which are here addressed by Robert Jackson. Meanwhile, if the SNP gets the majority it seeks, his proposals provide an alternative to a direct confrontation between the British and Scottish governments concerning “Indyref2”.

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Introductory: Referendums in the UK since 1975

Since the UK held its first national referendum in June 1975 there have been no fewer than thirteen further referendums. Three of these have been UK-wide events: the first referendum on remaining in the European Common Market in 1975; that on the proposal to change the voting system for general elections in 2011; and that on remaining in the European Union in 2016. The others have been regional events: putting to one side the “Border Poll” referendum in 1973 held by the then Northern Ireland government, these include the first devolution referendums in Scotland and Wales in 1979; the second such referendums in 1997; the referendums on government in London and concerning the Good Friday Agreement in Northern Ireland in 1998; that concerning devolution in North East England in 2004; and the referendum on Scottish independence in 2014.

These various referendums over the past half century have each concerned what may be described as the “rules of the game”. As such they have probably now established the referendum as a permanent feature of the British constitution, supplying a legitimacy for changes in the rules of the game that can perhaps no longer be provided by a simple parliamentary majority.

It should also be noted that, following the Good Friday Agreement, the UK Parliament made general provision for the UK government to “order a poll” on the future status of Northern Ireland “if at any time it appears likely … that a majority of those voting would express a wish that NI should cease to be a part of the UK and form part of a united Ireland”.

Each of these various referendums has required separate authorisation by a UK Act of Parliament. This has set out the terms of the referendum question or questions (two of these in the second Scottish devolution referendum in 1997, including the question whether the new devolved government should have tax-raising powers). And it has also determined the character of the majority required to determine the question: this has normally been a simple majority of those voting, but in the first Scottish devolution referendum in 1979 it was required that in addition a majority of more than 40 per cent of the total registered electorate would be required to enact devolution. The Scottish Independence Referendum Act 2013 provided that the relevant electorate should include all Commonwealth and EU citizens residing in Scotland, and moreover it also provided, unusually, for the extension of the franchise in the referendum to Scottish 16 and 17 year olds.

In sum, it falls to the UK government and parliament to determine whether and when any national or regional referendum is held in the UK – to determine the question to be answered – the qualifications of the relevant electorate – and the nature of the majority required for any change from the status quo.

Referendums before or after Legislation? 

There have basically been two kinds of referendums in the UK: those held on a question of general principle, and those referring to a previously enacted legislative text or international agreement. The original referendum in 1975 was of the second kind: “the Government has announced the results of the renegotiation of the UK’s terms of membership of the European Community. Do you think that the UK should stay in the European Community (the Common Market)?”.  The first two devolution referendums in 1970 were likewise held to accept or reject specific Acts of Parliament making detailed provision for devolution in Scotland and Wales: “Do you want the Provisions of the Scotland/Wales Act 1978 to be put into effect?”. The Northern Ireland referendum in 1998 addressed the specific question: “Do you support the agreement reached at the multi-party talks on Northern Ireland and set out in Command Paper 3883”?”  And similarly the 2011 referendum on the UK voting system addressed the specific question “Should the “alternative vote” system be used … instead of the “first past the post system” to elect MP’s to the House of Commons?”.

Thus down till 1997 referendums in the UK referred to a specific legislative text or international agreement.  But after that date, and perhaps without sufficient regard for the implications of such a change, there was a shift to the holding of referendums referring to a general principle. This was initiated by the second set of devolution referendums in 1997, when the question was, “Do you agree that there should be a Scottish/Welsh parliament as proposed by the Government?”.  Similarly, the North East England devolution referendum in 2004 asked, with a brief preamble, “Should there be an elected assembly in the North East region?”. And at the 2014 Scottish Independence referendum the question was baldly: “Should Scotland become an independent country?”  In the same way, the second UK referendum on Europe in 2016 differed from the first in that although it was also preceded by some renegotiation of the terms of UK membership, the question did not refer to these: “Should the UK remain a member of the EU or leave the EU?”

There is an important practical difference between these two kinds of referendum – those with and those without reference to some prior agreement at the parliamentary level. Obviously any referendum, like any general election, must always lead to unforeseen and perhaps unforeseeable consequences. But the choice to be made at a referendum on a specific and detailed proposal is more likely to be a well-informed choice than the one that might be made without reference to such prior clarifications. At a general election fought on the basis of competing party manifestos each party is obliged to present a coherent and costed program which can be compared with that of its competitors and which is extensively and intensively discussed and debated in the course of the election campaigns. In a referendum fought without any equivalent arrangement the scope for misrepresentation, exaggeration, and even for fantasy is greatly expanded. A case in point is the way in which the 2014 Scottish referendum campaign was punctuated by the apparently sudden realisation on the part of the electorate that a post-independence currency union with England as promised by the SNP would not in fact be available.

Future UK Referendums: no Referendum without prior Agreement on Consequences

Since referendums have now become a permanent feature of the British constitutional landscape, and since we have now had more than a half century of experience of them, there must surely be a case for putting them onto a more considered and principled basis. A basic principle should be that the electorate should be enabled to be as well informed as possible concerning the consequences of its vote. The UK government and parliament should therefore proceed to enact a new Referendum Law, at the centre of which would be a requirement that all future referendums in the UK shall address a prior agreement between the relevant parties as to the practical consequences of the referendum vote. Bluntly, a principle of “informed consent” should be applied in all referendums.

The Australian constitution, as laid down in the Commonwealth of Australia Constitution Act, 1900, provides an example of such an arrangement within the framework of British parliamentary democracy. Its section 128 provides that the constitution may only be modified on the basis of a positive vote in a referendum, which must be preceded by a legislative act passed by the Commonwealth parliament. Thus for example, at the referendum on the future of the monarchy in Australia in 1999 the electorate did not vote on the principle of monarchy leaving it to the politicians to sort out the details afterwards: they voted on, and rejected, the specific proposal to replace the Queen with a President elected for a fixed term by a two thirds majority in the Commonwealth parliament.

Applying the Principle of “Informed Consent” to Secession Referendums

While in the UK it should be possible to frame such legislation in terms applicable to all future referendums, in the context of current British politics the most immediately pressing issue concerns referendums on secession from the UK.  In such cases a requirement for “informed consent” at such a referendum should involve prior agreement between the UK government and parliament and the devolved executive and assembly of the part of the UK which is contemplating secession. Adopting a distinction made in the EU’s Lisbon treaty of 2009 which provides for withdrawal from the EU, such an agreement might conveniently consist of two parts: a “Withdrawal Agreement” and an “Agreement on Future Relations”. Taken together, these agreements would then be put to a referendum vote in the relevant country.

Scotland Taking the particular case of Scotland, such a Withdrawal Agreement would have to cover such matters as the division of the assets and the liabilities of the UK between the UK and an independent Scotland. The most important such asset would be the Scottish share of contributions to the UK National Insurance Fund from which pensions and other social security benefits are paid.  This could be divided either on a per capita basis or in the light of the share of those contributions historically paid into the Fund by residents in Scotland. Note however that since most of the payments currently made from the Fund are paid for by UK taxpayers, it would have to be agreed that the liability for making such payments after independence would be transferred to Scottish taxpayers. It has been estimated that this liability in respect of pensions would add some £155 billion to Scotland’s real public sector debt.

The most considerable liability to be divided would be the Scottish share of the UK National Debt. This could be divided on the basis of Scotland’s share in the UK population, perhaps with reference also to the proportion of the UK debt attributable to borrowing by Scottish governments since devolution in 1999, when the Scottish government’s deficits have consistently been much higher than those of the UK as a whole. It has been estimated that on the population basis Scotland would have to assume the burden of a further £150 billions of public debt. In 2018 the SNP’s Sustainable Growth Commission envisaged that at independence Scotland would inherit no public debt obligations from the UK. There is no warrant for this assumption, but if the extent of these obligations had to be agreed before any referendum there would be no room for the obfuscations which would otherwise be all too likely. There is general agreement among independent experts that an independent Scotland would set out with a public debt to GDP ratio which would be unsustainable without very substantial increases in taxation or cuts in borrowing, or both.  The principle of “informed consent” requires that the electors should be fully informed about these matters before they cast their votes.

The draft Agreement on Future Relations would similarly outline the consequences of Scottish independence for monetary, financial, commercial, and economic relations with the rest of the UK. As was made clear at the 2014 referendum, the UK will not agree to a formal currency union with an independent Scotland, which would thus have to operate its own currency backed by its own resources: it should also be agreed that borrowings previously made in sterling, including mortgages, would have to be repaid in terms of sterling. In respect of Scottish budgetary resources, the UK’s position would surely be that fiscal transfers from the UK to the Scottish government (under the “Barnett Formula”) would cease at independence. In 2019/20 this block grant to Scotland amounted to some £15 billions net of Scotland’s contribution to UK tax revenues, without counting the additional gross £8.6 billions provided since 2020 for fighting Covid.

A sovereign Scotland would of course be free to apply to join the EU: in the interim (which may be of indefinite duration) it might be agreed that the Scottish economy would continue to operate within the UK single market and customs union, subject to rules determined by the UK government and parliament. Since a sovereign Scotland will be free to pursue its own immigration policy there will also have to be some agreement on the control of movement across the Scottish borders with the rest of the UK. It will also have to  be agreed that these controls would be intensified if and when Scotland were to join the EU single market and customs union – ie that if the EU deems it to  be necessary, a “Hard Border” with frontier posts would be required between Scotland and the market into which it sells 60 per cent of its exports.  Another matter for negotiation might be the future status of Orkney and Shetland, where the local population might wish to opt out of Scottish independence.

The continued participation of an independent Scotland in the Western defence system will obviously be a central concern for the UK. It might make it a condition of the agreement which must precede any referendum that Scotland would join the NATO alliance. As in the case of the British sovereign base areas at Akrotiri and Dhekelia in Cyprus, the UK might also seek agreement on the permanent retention of UK sovereignty over the strategically important naval base at Faslane.

 Northern Ireland – How might the principle of “informed consent” prior to any referendum be applied in the case of Northern Ireland?  A requirement that this would be secured by prior agreement on the terms of the secession of NI from the UK is consistent with and amplifies the UK commitment in the Northern Ireland Act of 1998 to hold a referendum “if at any time it seems likely … that a majority of those voting would express a wish” for secession.  Meanwhile, the terms of the 1998 Belfast Agreement, including the British-Irish agreement, imply that this case might differ from that of Scotland in that the required prior agreement should involve not two but three parties: not only the UK government and parliament and the Northern Ireland executive and assembly but also the Irish government and Oreachtas, and also probably the Irish electorate at their own constitutionally required referendum on Irish unification.

As in the Scottish case, agreement prior to these Irish referendums should cover the terms of Northern Ireland’s withdrawal from the UK and of its future relations with the UK. In the Irish case the issues under the “Future Relations” heading would perhaps be simplified as a consequence of NI’s unification with Ireland (if that were agreed by the Irish electorate) and its consequent re-entry into the EU, and its entry into the Eurozone. As in the case of Scotland, the agreement on the terms of “Withdrawal” would have to cover the allocation of NI’s share of the UK National Insurance Fund to the expanded Irish Republic, whose citizens would also have to agree to take on NI’s share of the UK National Debt. Since direct and indirect budgetary transfers from the UK to NI would cease with secession, successor arrangements would have to be agreed with Irish republic and its taxpayers. If these were to be equivalent to the transfers currently paid by the UK their cost would amount to some £10 billions each year, more than a third of NI’s annual fiscal budget and a substantial proportion of the Republic’s annual GDP.  The agreement would also have to provide, subject to EU rules, for controls on the free movement of goods and services between NI and GB, and perhaps also of people.

 Other Possible Features of the Regulation of Future UK referendums

 In legislating to put future UK referendums on a principled and coherent basis, the UK parliament should not only provide for the application of the principle of “informed consent” in the form of agreement on consequences prior to any referendum.  It should also consider the application of several other general principles.

First, there is the question of the composition of the referendum electorate. It is surely questionable whether EU citizens, other perhaps than those of Irish nationality, should have a vote in any referendum concerning the constitutional arrangements of the UK. They were not accorded a vote in the 2016 referendum on leaving the EU; and the same principle should be applied in future UK referendums.  It is also questionable whether the exceptional concession of the vote to minors (16 and 17 year olds) in the 2014 Scottish referendum should be continued: this was accorded by the UK parliament, and it can be withdrawn by the UK parliament.

In the devolution referendums of 1978 and 1997 and again at the Scottish independence referendum in 2014 the electorate was restricted to residents of Scotland and Wales currently registered on the electoral rolls. In the case of future referendums on secession there is a good case in principle for extending the franchise at the referendum to all adults resident anywhere in the UK who would be eligible by right of birth to become citizens of the new state which might result from the referendum.  Since they would (probably, as in Ireland) have a vote in elections after secession it would seem logical that they should also have a vote on the principle of secession.

Is it right in principle that a simple majority of those voting should suffice to determine a decision at a referendum, especially in such a crucial matter as the secession and creation of a new sovereign state?  In the case of Australian referendums, voting is compulsory in all elections, ensuring that all votes are fully representative of majority opinion. Elsewhere this has been secured by a rule requiring some kind of super-majority for a change in the status quo. Thus in the 1978 devolution referendum in Scotland it was required that in addition to a simple majority of those voting there should also be a positive vote of more than 40 per cent of the registered electorate. There is a powerful case for applying the same principle across the board in all future UK referendums as previously argued on this site.

 Some Political Implications of these Proposals

 Each of these proposals for UK legislation to regulate future UK referendums has a sound and readily defensible basis in democratic principle.  It is right in principle that electorates should be as fully informed as possible as to the consequences of their vote, for themselves personally and for their country.  It is right in principle that (with limited exceptions) only citizens of the UK should participate in votes concerning the future of the UK. It is right in principle that voters should be adults. It is right in principle that in the case of referendums on secession all those who would be entitled to citizenship in the new state should be enabled to participate in the vote on the possible creation of that state.  And it is right in principle that any change from the status quo should be fully representative of the opinion of the majority of the qualified electorate as a whole.

It would nevertheless be naïve to ignore the political implications of the implementation of these principles. Here are some relevant reflections. The regulation of elections and referendums in the UK is a sovereign prerogative of the British Crown in Parliament. When the exercise of that prerogative is governed by sound and defensible democratic principles, their application is legitimate and should be acceptable.  The negotiation of the kind of agreements which would be required prior to any referendum, and the successful conclusion of which will be the condition for the holding of that referendum, must necessarily be a difficult and exacting process: but it would also be profoundly informative and educational as to the consequences of the eventual referendum vote. Above all it would require the relevant parties to admit those consequences, to take full responsibility for them, and defend them before electors who would thus be as fully informed as possible concerning those consequences before they take the plunge.

Robert Jackson is a former MP and MEP.


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About the author

Robert Jackson