LOS SENSUALES CAPITULO PRIMERO

In terms of the criteria established in chapter one, the democratic potential of a referendum depends on the extent to which the referendum facilitates an opportunity for effective citizen participation that gives citizens influence over the content of the policy agenda, and over the legislative and policy outcomes of that agenda. The extent to which these criteria are met, and the democratic potential of referenda realised, depends to a large degree on the design of the referendum instrument and the degree of control that remains with existing institutions. Despite the seemingly direct impact on the policy of government that a referendum provides to citizens,34 institutional mediation is possible through control over when and on what subject the referendum is

32

For discussion of the differences between binding and advisory referenda See M Setala, ‘On the Problems of Responsibility and Accountability in Referenda.’ [2006] European Journal of Political Research, 699.

33 _{For a discussion of the different impact of advisory and binding referenda in a UK context see House of Lords}

Select Committee on the Constitution, 2009-10. Referendums in the United Kingdom para 190-197. Available at <http://www.publications.parliament.uk/pa/ld200910/ldselect/ldconst/99/99.pdf> accessed 8 July 2015.

34 _{See for example, G Smith, ‘The Functional properties of the Referendum’ [1976] European Journal of}

initiated, through administering the referendum process, and also to some degree through control over the implementation of the referendum result.35 Some degree of involvement of institutions in the referendum process is expected, however, because direct democracy is not replacing the existing legitimisation processes.36 The issue is therefore the extent of institutional control, rather than the fact that it exists.

As with all democratic instruments there is the potential for corruption or such tight institutional control over referenda that they serve the ends of those with political power rather than the voting citizens. Referenda have been held by authoritarian leaders such as Hitler to give a democratic veneer to their position and policies,37 but they should not be rejected as a democratic instrument because of past abuses, anymore than representative elections should stop being held because of their ongoing abuse and corruption in some parts of the world.38 Although the political manipulation of referenda in western liberal democracies is not comparable to the plebiscitary uses of referenda by past authoritarian regimes, criticism remains that referenda are both ‘controlled’ by Government and ‘pro hegemonic’.39 Lipjhart states that referenda are controlled and pro hegemonic ‘weapons of government’, emphasizing governmental ability to control when referendum might be initiated, potentially only when their policy preference will be endorsed.40

Matt Qvorturp, however, questions the extent to which referenda initiation is controlled and pro hegemonic.41 His empirical analysis of referenda results concludes that “the majority of referenda held have been uncontrolled referenda, and that most of them have gone against the wishes of government”.42 Of the referendum held that Qvortrup defines as ‘controlled’, the degree of control is argued based largely on political pressures and he acknowledges that the degree of control is a spectrum rather than two individual, opposing positions.43 For example the devolution referendum of 1979 is defined as uncontrolled because it was held following pressure from opposition parties and Labour (Government) backbenchers. There were similar pressures in the 1975 EC referendum but Qvortrup defines this referendum as ‘controlled’, presumably because the pressures were less

35

The issue of institutional mediation is explored in detail by S Tierney, Constitutional Referendums. The Theory and Practice of Republican Deliberation (OUP 2012) 98-128 Ch. 4 Elite control.

36

‘Referendums and initiatives are inextricably entwined with the institutions of representative democracy’, stated in introduction in M Mendelsohn and A Parkin (eds) Referendum Democracy: Citizens, elites and deliberation in referendum campaigns (Macmillan 2001) 4.

37

M Setala, Referendums and Democratic Government: Normative Theory and Analysis of institutions

(Macmillan 1999) 3.

38

G Smith, ‘ The Functional properties of the Referendum’ [1976] European Journal of Political Research 7.

39 _{Ibid 4.} 40

A Lipjhart, Democracies: patterns of majoritarian and consensus government in 21 countries, (YUP 1984)

41 _{M Qvortrup, ‘Are Referenda Controlled and Pro hegemonic?’ [2000] Political Studies 821.} 42 _{Ibid 821.}

43

marked and the Government was in a stronger position, despite the formal legal position being the same. The analysis in this chapter is of the legal framework of the EUA rather than the political pressures that might come to bear on the government. Anti-hegemonic voting is possible but institutional control of referenda initiation limits what topics are put to the people to be voted on, and therefore limits the policy areas in which citizens have the opportunity to challenge established preferences. The extent to which the EUA passes this legal, rather than political, control over whether a referendum is held to citizens from the existing institutions is an important part of the analysis of the EUA in this chapter.

When the decision has been taken to hold a referendum, there is a further opportunity for institutional influence over the referendum outcome through the institutional administration of the referendum vote. Tierney breaks this phase of the referendum process in to ‘the agenda setting stage ... and the campaign process itself’, which take in issues such as defining the question and the provision of information, respectively.44 Ranney and Butler also highlight the significance of the procedural control governments have over the ability to frame citizen choices as an important limitation on the democratic potential to challenge established policy preferences.45 The greater the control governments have over the procedural aspects of referenda, the more likely it is that their policy preference will be supported in the referendum vote. The legislative design of referenda in the EUA does not specifically address these issues, other than to confirm that the Electoral Commission has an important role to play in decisions of this nature,46 and it is therefore a limited part of the discussion below.

The implementation of the outcome of the referendum result is the third point at which there is the potential for institutional mediation. Graham Smith specifically refers to criticism of referenda for having little or no impact, and outcomes disconnected from the citizen participation that has taken place.47 For referenda the ability to increase citizen influence over agenda outcomes is one of the strongest legitimising aspects of their use as a democratic instrument. Notwithstanding the decision to make a referendum decision binding or not, a citizen can usually see a direct impact from that vote; at least when compared to a vote to select representatives, where there is an extra step

44

S Tierney, Constitutional Referendums. The Theory and Practice of Republican Deliberation (OUP 2012) ch 4.

45

D Butler and A Ranney, Referendums Around the World: The Growing Use of Direct Democracy (Macmillan 1994) 258-9 - cited in M Qvortrup, ‘Are referenda controlled and pro-hegmonic’ [2000] Political studies 281. For further discussion of distinction between where control lies over the decision to initiate a referendum and control over the referendum process in terms of question setting, timing and funding of referenda see S Tierney, Constitutional Referendums. The Theory and Practice of Republican Deliberation (OUP 2012).

46 _{s13 EUA.} 47

between the vote and the policy outcome.48 If a referendum does not clearly lead to the implementation of citizen preferences, as expressed in a policy vote, then its democratic potential will be significantly reduced, particularly given its weakness in allowing citizens to influence the content of the policy agenda. As with the control over the initiation and process for referenda, the control over the outcome from the referendum result is dependent on the legislative design of the referendum and its implementation, and the control of institutions at both these points.

Whatever the empirical arguments about the degree of government political control over past referenda, Qvortrup, at the very least, makes the point that referenda can lead to a challenge to established policy preferences outside the full control of the existing institutions and that the claim by Lipjhart that all referenda are controlled and pro-hegmonic needs further investigation. This is confirmed by Tierney who stated that, ‘we need a much more nuanced account than the simple ‘controlled and pro hegemonic’ claim, … taking account in full of the legal and political environment in which [the referendum] operates’.49 It is also necessary to look beyond the political rhetoric, which for the EUA, sits at the other end of the spectrum from Lipjhart and claims that holding a referendum passes control to citizens: William Hague, Foreign secretary, stated that the EUA “marks a fundamental shift in power from Ministers of the Crown to parliament and the voters themselves on the most important decisions of all: who gets to decide what”.50 The legal analysis of the EUA referenda provisions in this chapter, therefore, considers where the democratic potential of their legislative design is likely to sit between a fundamental shift in power towards citizens and institutions retaining hegemonic control over the initiation and outcomes of referenda, which would limit the possibility of a challenge to established policy preferences. The first stage in this analysis is to examine the mechanics of the EUA referenda provisions.