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Published online by Cambridge University Press: 09 December 2021
Carl Schmitt and AV Dicey are two of history's most influential constitutional theorists, and they offer two of history's most influential accounts of referendums. In most respects, their approaches to referendums are in direct opposition to each other. On Schmitt's view, the purpose of referendums is to acclaim executive actors. On Dicey's view, the role of referendums is to constrain them. Despite disagreeing about whether referendums should acclaim or constrain the executive, Schmitt and Dicey agree that an agenda-setting role for representatives in referendums is inevitable. This paper argues that, in the UK context, if Schmitt and Dicey are right about the necessary agenda-setting power of representatives in referendums, then the accounts of referendums they each offer must be two sides of the same coin. Given the dominance of the executive over the legislature in the UK and the uncodified nature of the constitution, referendums are processes that necessarily both acclaim and limit the executive.
1 There is no universally agreed definition of a referendum. A broad, familiar definition is ‘a popular vote on a matter of policy’: M Setälä Referendums and Democratic Government (Macmillan, 1999) p 4. This broad definition does not, however, have universal support. Often, theorists distinguish between processes that are initiated by voters, labelling those initiatives. The term referendum is then reserved for processes initiated by representatives. The term plebiscite is also sometimes used to distinguish referendums based on their content or bindingness: M Qvortrup (ed) Referendums Around the World: The Continued Growth of Direct Democracy (Palgrave MacMillan, 2014) p 2. This paper adopts the broad definition of referendums as ‘popular votes on a matter of policy’, without distinguishing between referendums and initiatives. The reason for not distinguishing between referendums and initiatives is that while it is undoubtedly correct to say, as a matter of degree, that citizen-initiated referendums are driven by voters, the terms of those referendums remain constrained by representatives. These constraints come in the form of the agenda-setting role(s) identified by Schmitt and Dicey. However, it is certainly true that while a role for representatives is inescapable in setting the terms of referendums, the type and impact of that role will depend on the popular vote in question and whether voters trigger them. An excellent example of this is the Recall of MPs Act 2015. This Act allows for removing MPs, so representatives are certainly on the back foot in such processes. Still, the circumstances in which voters can remove MPs, and the procedures for their removal, remain tightly controlled by representatives.
2 With the rise of mass party democracy, the House of Lords was losing its legitimacy as a check on the House of Commons. This shift was institutionalised by the passing of the Parliament Acts 1911 and 1949, which limit the capacity of the House of Lords to block legislation from the House of Commons.
3 The constitutional issue that dominated Dicey's thinking about this was Home Rule for Ireland: Qvortrup, M ‘AV Dicey: the referendum as the people's veto’ (1999) 20 History of Political Thought 531Google Scholar.
4 AV Dicey Introduction to the Study of the Law of the Constitution (Roger E Michener ed, 8th revised edn, Liberty Fund Inc, 1982) p cix.
5 Ibid, p cxv.
6 Ibid, pp cxv–cxvi.
7 Ibid, p cxv.
8 Lord Hailsham ‘Elective dictatorship’ The Listener 21 October 1976, pp 496–500.
9 Dicey, AV ‘Ought the referendum to be introduced in England?’ (1866) 57 The Contemporary Review 489Google Scholar.
10 Qvortrup, above n 3, at 542.
11 Dicey, above n 4, p cvx.
12 Ibid.
13 P Craig Public Law and Democracy in the United Kingdom and the United States of America (Clarendon Press, 1990) p 15.
14 However, it is essential to recognise that in advocating for a referendum, Dicey was trying to make the process of Home Rule impossible through a different form of homogenisation. A referendum across the entire UK would leave the Irish as a minority vastly outvoted by the majority.
15 ‘Dicey [deserves] a place among the great liberal thinkers’: Qvortrup, above n 3, at 546.
16 ‘This argument forms an important supplement to the argument for the referendum as a veto, an entrenching device. For, as we have seen, the case for the veto is broadly a conservative one, based upon a distrust of the efficacy of representative institutions and, in particular, of political parties. But the case for the referendum based upon its educative nature and the need to encourage participation relies upon arguments of an entirely different type’: V Bogdanor The People and the Party System (Cambridge: Cambridge University Press, 1981) p 85.
17 ‘It must, in short, be admitted that a veto on legislation, whether placed in the hands of the King, or in the hands of the Lords, or of the House of Commons, or of the 8,000,000 electors, would necessarily work sometimes well and sometimes ill’: Dicey, above n 4, p cxiii.
18 Ibid.
19 Ibid, p cxiv.
20 H Bielefeldt ‘Carl Schmitt's critique of liberalism’ in D Dyzenhaus (ed) Law as Politics (Duke University Press, 1998) p 24.
21 Ibid, p 25.
22 Ibid.
23 Ibid.
24 ‘The total state needs a stable authority in order to move ahead with the necessary depoliticisation and to establish free spheres and living spaces from within itself’: C Schmitt Legality and Legitimacy (Duke University Press, 2004) p 90.
25 Ibid.
26 Ibid, p 61.
27 J McCormick ‘Identifying or exploiting the paradoxes of constitutional democracy? An introduction to Carl Schmitt's Legality and Legitimacy’ in Legality and Legitimacy (Duke University Press, 2004) p xxvii.
28 Schmitt, above n 24, p 21.
29 Ibid.
30 D Dyzenhaus ‘The politics of the question of constituent power’ in M Loughlin and N Walker (eds) The Paradox of Constitutionalism (Oxford: Oxford University Press, 2007).
31 Ibid, p 129.
32 Loughlin and Walker, above n 30, p 22.
33 The question of who ‘the people’ are is, of course, a serious problem in legal and constitutional theory, not least because of the boundary problem: F Whelan ‘Prologue: democratic theory and the boundary problem’ (1983) 25 Nomos 13. This paper is not advocating for the use of the term ‘people’ in its analysis. In its positive suggestions in section 4, it explicitly uses the word ‘voters’ to recognise that the very definition of a, or the, people is contested.
34 Schmitt, above n 24, p 90.
35 Ibid.
36 McCormick, above n 27, p xxxii.
37 Setälä says that referendums are ‘handy tools for dictators in boosting their legitimacy, and were used to consolidate the powers of the Nazis, and among former communist countries in Eastern Europe’: Setälä, above n 1, pp 1–2.
38 Schmitt's current influence, of course, extends well beyond democracies, as demonstrated by Libin, X and Patapan, H ‘Schmitt fever: the use and abuse of Carl Schmitt in contemporary China’ (2020) 18 International Journal of Constitutional Law 130CrossRefGoogle Scholar.
39 W Rasch ‘Carl Schmitt's defense of democracy’ in J Meierhenrich and O Simons (eds) The Oxford Handbook of Carl Schmitt (Oxford: Oxford University Press, 2016) p 331.
40 The HLCC did put forward a list to provide examples of what could count as a fundamental constitutional issue while emphasising their qualification: ‘This is not a definitive list of fundamental constitutional issues, nor is it intended to be’. The list included: ‘to abolish the Monarchy; to leave the European Union; for any of the nations of the UK to secede from the Union; to abolish either House of Parliament; to change the electoral system for the House of Commons; to adopt a written constitution; and to change the UK's system of currency’: House of Lords’ Constitution Committee 12th Report ‘Referendums in the United Kingdom’ (2009) p 49.
41 Recommendation 18 of the report holds that: ‘Referendums should be held on proposals that are clear and immediately actionable. This means that, wherever possible, referendums should be held post-legislatively: the relevant Parliament or assembly should legislate in detail for the change, subject to the approval by voters in the referendum. Should the result favour the change, the provisions would then be implemented’: ‘Report of the Independent Commission on Referendums’ (Constitution Unit, July 2018), https://www.ucl.ac.uk/constitution-unit/publications/tabs/unit-publications/182_-_Independent_Commission_on_Referendums, p 86.
42 ‘(1) The Minister must make an order bringing into force section 9, Schedule 10 and Part 1 of Schedule 12 (“the alternative vote provisions”) if — (a) more votes are cast in the referendum in favour of the answer “Yes” than in favour of the answer “No”, and (b) the draft of an Order in Council laid before Parliament under subsection (5A) of section 3 of the Parliamentary Constituencies Act 1986 (substituted by section 10(6) below has been submitted to Her Majesty in Council under section 4 of that Act. (2) If more votes are not cast in the referendum in favour of the answer “Yes” than in favour of the answer “No”, the Minister must make an order repealing the alternative vote provisions’: Parliamentary Constituencies and Voting Act 2011, s 8.
43 The UK Supreme Court stressed this point in Miller where the majority held that: ‘Both sides of the argument proceed on the basis that the referendum on membership of the EU was held under the European Union Referendum Act 2015 (“the 2015 Act”), which resulted in a vote to leave the EU, does not provide the answer. The Secretary of State's argument proceeds on the basis that the Crown has taken the decision under Article 50(1), accepting the result of the referendum. The Miller claimants argue that only Parliament can take that decision. Both the Secretary of State and the Miller claimants proceed on the basis that the referendum result was not itself a decision by the UK to withdraw from the EU, in accordance with the UK's constitutional requirements, and that the 2015 Act did not itself authorise notification under Article 50(2). In these circumstances, there is no issue before the court as to the legal effect of the referendum result. Nor is this an appropriate occasion on which to consider the implications for our constitutional law of the developing practice of holding referendums before embarking on major constitutional changes: a matter on which this court has heard no argument’: R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 at [171].
44 House of Lords’ Constitution Committee 15th Report ‘The Process of Constitutional Change’ (July 2011) https://publications.parliament.uk/pa/ld201012/ldselect/ldconst/177/17702.htm (last accessed 11 November 2021).
45 Indeed, the absence of codification allows for referendums to be promised, for example, on the Lisbon Treaty, and then the promise retracted. This practice has given rise to legal challenges including R (on the Application of Wheeler) v Office of the Prime Minister (2008) [2008] EWHC 1409 (Admin).
46 R Albert ‘Trudeau's threat: the referendum at patriation’ (2020) University of Texas Law, Research Paper No 721, SSRN-id3665025 (last accessed 11 November 2021).
47 ‘Referendums are part of a bargaining process between elites… executives can better position themselves than legislatures along a policy spectrum when introducing referendums: M Walker The Strategic Use of Referendums: Power, Legitimacy, and Democracy (Springer, 2003) p 3.
48 See above n 37.
49 Hollander persuasively shows that, in calling referendums, ‘strategic motives are decisive’: S Hollander The Politics of Referendum Use in European Democracies (Palgrave Macmillan, 2019) p 5.
50 ‘Political actors use referendums to achieve their goals’: Walker, above n 47, p 1.
51 ‘Referendums are part of a bargaining process between elites… executives can better position themselves than legislatures along a policy spectrum when introducing referendums’: ibid, p 3.
52 With the caveat that constitutional statutes cannot be impliedly repealed: Thoburn v Sunderland City Council [2002] EWHC 195 (Admin).
53 ‘The key characteristic is that it is a reactive legislature’: P Norton ‘Parliament: the best of times, the worst of times?’ in J Jowell and C O'Cinneide (eds) The Changing Constitution (Oxford: Oxford University Press, 9th edn, 2019) p 158.
54 Ibid, p 185.
55 Norton argues that this has improved, particularly with the strengthening of the select committee system: above n 53, pp 169–171.
56 Russell, M and Cowley, P ‘The policy power of the Westminster parliament: the “parliamentary state” and empirical evidence’ (2016) 29 Governance 121CrossRefGoogle Scholar at 133.
57 M Russell and D Gover Legislation at Westminster: Parliamentary Actors and Influence in the Making of British Law (Oxford: Oxford University Press, 2017) p 1.
58 Legislatively, ‘what the executive [wants], the executive [gets]’: Norton, above n 53, p 163.
59 Schmitt, above n 24, p 91.
60 The degree to which referendums are negative and positive democratic processes depends on the context: M Qvortrup The Referendum & Other Essays on Constitutional Politics (Oxford: Hart Publishing, 2019) p 92.
61 Whiteley, P et al. ‘Britain says NO: voting in the AV ballot referendum’ (2012) 65 Parliamentary Affairs 301CrossRefGoogle Scholar at 301.
62 ‘Referendums “fail to fit any clear universal pattern”’: M Gallagher and P Uleri (eds) The Referendum Experience in Europe (Macmillan, 1996) p 2, citing A Lijphart Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries (Yale University Press, 1984) p 206.
63 Whiteley et al, above n 61.
64 ‘Survey research shows that voters do not believe they are pivotal but do believe their vote influences the (mandate) outcome. The contributory model of voting – contributing to advancing a greater public good – is also consistent with the fact that turnout is higher in more important elections. It is higher in countries whose constitutions are more responsive to voters’ preferences’: G Mackie ‘Deliberation and voting entwined’ in A Bächtiger et al (eds) The Oxford Handbook of Deliberative Democracy (Oxford: Oxford University Press, 2018) p 222.
65 Guerrero, A ‘The paradox of voting and the ethics of political representation’ (2010) 38 Philosophy and Public Affairs 272CrossRefGoogle Scholar at 274.
66 Ibid.
67 In its Secession Reference, ‘The Supreme Court [of Canada] did not define what would amount to a “substantial consensus.” And “It [was] unclear what a clear majority meant[t]’: P Monahan ‘Doing the rules: an assessment of the Federal Clarity Act in light of the Quebec secession reference’ (2000) Osgoode Hall Law School of York University, https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1074&context=reports (last accessed 11 November 2021) pp 12–13.
68 Although note the possibility that this finality can undermine deliberation, as argued in S Chambers ‘Constitutional referendums and democratic deliberation’ in M Mendelsohn and A Parkin (eds) Referendum Democracy: Citizens, Elites, and Deliberation in Referendum Campaigns (Palgrave, 2001) p 232.
69 The challenges and debates around the Australian postal vote on same-sex marriage show that no framework on its own can guarantee the clear and consistent use of referendums.
70 This is not to overstate how distinctive the abuses of referendums are to the UK. Referendums have been used poorly in Canada, which has similarly little legislative guidance on their use. The referendum question on Quebec's secession in 1995 created confusion and nearly constitutional chaos.
