The referendum has become a part of the British constitution.
On September 18th Scotland will vote in its independence referendum. It would be unthinkable for the Union to be severed without a “Yes” vote.
The Conservative Party has promised a 2017 “in-out” referendum on Britain’s membership of the EU and in the aftermath of a fairly dismal showing in the European elections the Labour Party is being urged to do the same. At present Mr Milliband has “guaranteed” to hold one only if the UK is asked “to transfer more power to Brussels.”
UKIP, of course, makes no bones about wanting Britain to leave the EU at the earliest opportunity but even so the Kippers’ exit route involves “an immediate referendum” Implicitly it accepts that the country would require an “out” vote for withdrawal to be legitimate.
Whilst the prospects of the Liberal Democrats being in government after the next election look increasingly remote, they too have made it clear that they would hold a referendum if any further powers are to be transferred to Europe.
A convention has developed that major constitutional changes should not be made unless they are supported by the electorate in a referendum.
The Myth of the Mandate
Before 1973 referendums were for foreigners. British Governments did not need them. The theory was that they had a “mandate” to enact anything that was promised in the governing party’s manifesto. The obvious drawback with the “mandate” theory is that few voters at an election know in detail what the contents of their chosen party’s manifesto is, and even if they do know they are unlikely to agree with all of it anyway. They cannot pick and choose the policies they like: a vote for a party is taken to be a vote for all its policies.
A referendum, on the other hand, allows the electorate to give a clear answer to a specific question.
Dictators and Plebiscites
Dictators have always loved referendums as long as they can be certain of winning them. For some reason this sort of referendum is always – pejoratively – called a “plebiscite”. The first British Government Referendum was held in 1973 on whether Northern Ireland should join the Irish Republic and, although Ted Heath, the Prime Minister who proposed this wheeze, was no dictator, it rather conformed to this pattern. Nationalists – who everybody knew were bound to lose anyway – boycotted the plebiscite and the Unionists won a meaningless 98.9% of the vote, even greater than the margin of victory of Crimean pro-Russian separatists in their recent vote to leave the Ukraine.
The Wilson Gambit
The somewhat dubious legitimacy which the referendum conferred on the Unionists of Northern Ireland did nothing to deter Heath’s bitter rival, Harold Wilson, who proposed a referendum on continued British membership of what was then popularly called the “Common Market.” His reason for doing so had little to do with principle but it proved to be a successful, if faintly disingenuous, gambit. Indeed, the promise of a referendum may have won him the exceptionally close October 1974 election when Enoch Powell – a cleverer and gloomier prototype of Nigel Farage – urged his supporters to vote Labour so as to obtain a vote on Common Market membership. Far from being a principled constitutional innovation the decision to hold the first ever nationwide referendum was a political manoeuvre by Harold Wilson who saw it as a way to hold his hopelessly divided Labour Party together. The parallel with Mr Cameron’s current position is striking.
Referendums become common-place
But whatever the reasons, the djinni was out of the bottle. Referendums were held in 1979 on the principle of devolution for Scotland and Wales. Parliamentary wheeling and dealing resulted in the “Yes” camp being set the unattainable target of support of 40% of the whole electorate – which they duly failed to achieve – and devolution was delayed until Tony Blair came to power in 1997. Again, Scottish and Welsh referendums were considered necessary before the legislation was passed.
Since then they have come comparatively thick and fast, albeit most have been on issues of local rather than national constitutional importance, such as the establishment of a London Mayor in 1998; or a proposal to introduce devolution for North East England in 2004, an uninspiring idea that was so little noticed at the time that it cannot even be described as long-forgotten.
In 2011 the Coalition held another national referendum, this time on the Liberal Democrat proposal to change the “first past the post” to the “alternative vote” system. Outside the political classes it again failed to generate much interest, except perhaps to confirm the electorate’s view of the LibDems as self-interested and incompetent opportunists. Nevertheless, the defeat of the proposal has meant that any changes to a more proportional voting system are almost certainly off the political agenda for the foreseeable future.
The need for a referendum has also prevented unpopular measures. One of the main reasons that Britain never joined the ill-fated Euro project was that the Labour Government accepted – under political pressure – that it should hold a referendum before doing so. No attempt to join the Euro was made, almost certainly because the Government knew that it would have lost it.
The more that referendums have been held, or demanded, the more it has become accepted that even relatively minor adjustments to the constitution require the endorsement of a popular vote.
Labour’s fatal error
However, there has been one glaring exception to this rule: the Human Rights Act 1998 which incorporated the European Convention on Human Rights (“ECHR”) into British law. The precise legal effects of the HRA are still hotly debated – I am not going to debate them here – but nobody doubts that by giving British judges powers to interpret laws by reference to the ECHR the Human Rights Act amounted to the most important constitutional change to English constitutional law since Britain joined the European Community. The Labour government in its vigorous early days, saw no need to put the Human Rights Act to a referendum. Had it done so it would have been both courageous and principled, and in all probability successful.
For those, like myself, who strongly support the Act this omission may have been a fatal error. Some even pointed out at the time that the Act was hardly worth having because it could be repealed as easily as it had been passed.
The chimera of a “British Bill of Rights”
It looks as though they were right. Home Secretary Theresa May and Justice Secretary Chris Grayling have promised that the next Conservative government will repeal the Human Rights Act and have even hinted at withdrawal from the European Convention itself. Conservative orthodoxy now dubs the Act the “Labour Human Rights Act”, something which would have been impossible had it been endorsed by a popular referendum. It is true that the Conservative Party has also talked of enacting an alternative “British Bill of Rights” – showing that it is not the concept of “Human Rights” as such that bothers it – and the coalition even set up a Commission to report on what such a Bill might contain. Unfortunately, and unsurprisingly, the Commission failed to agree on anything of substance beyond the laughably inconclusive “conclusion” that:
“None of us considers that the idea of a UK Bill of Rights in principle should be finally rejected at this stage. We all consider that, at the least, it is an idea of potential value which deserves further exploration at an appropriate time and in an appropriate way”
UKIP, meanwhile, has a limited assortment of clear policies beyond withdrawal from the EU, but repeal of the Human Rights Act is one of them. It has not suggested any sort of replacement (although in an echo of the notorious United States second amendment Mr Farage has called Britain’s ban on handguns “ludicrous.”)
The result is that if the Conservative Party, either alone or in coalition with UKIP, is re-elected one of its first pieces of legislation may well be the Human Rights (Repeal) Act 2015. The experience of the Bill of Rights Commission suggests that repealing the HRA will be a great deal easier than agreeing on any replacement. In all likelihood, if it is repealed the lack of consensus will lead to no replacement being enacted for many years, if at all.
The Human Rights Act was one of the few real achievements of Tony Blair’s administration and it would be a tragedy for the rights of the individual were this to happen. But it is an unpopular cause that now seems, in the minds of many, to place its supporters in an alliance with Islamist terrorists and sadists who murder children.
Why we need a referendum on the Human Rights Act
Nevertheless it is not too late to make the case for the Act. Those of us who lean politically to the right, in particular, should not be shy of defending it because the rights it protects are too important to be cast aside in a spasm of political populism. The law should support a prohibition on slavery, torture and arbitrary detention. It should guarantee the right to a fair trial, freedom of thought, freedom of assembly and a right to privacy and a family life. Even many of those Conservatives who wish to repeal the Act seem to agree on that.
The Labour Party remains committed in principle to the Human Rights Act, although its Justice spokesman Sadiq Khan recently muddied the waters somewhat with a vague and constitutionally incoherent suggestion that judges could be issued with “guidance” on how to interpret the Act in a more “British” way. That sort of tinkering merely plays into the hands of those who assert that support for the Act is unpatriotic.
It will not survive if it is seen as a party political totem. It needs to have the demonstrable support of a majority of the electorate. It is time to do what should have been been done in 1998 and hold a referendum on its continuation; and if an attempt is made to repeal it – to reverse what is now the constitutional status quo – to hold a referendum on its abolition. There are perfectly good arguments on both sides and it would be both brave and principled to let the electorate decide the issue once and for all.
Who knows what the result of such a referendum would be? At present the Act seems an unloved piece of legislation that may well be heading for the knacker’s yard after the next election. Yet if the arguments are put before the electorate there is at least a chance that it would prove more popular than its opponents expect. Who, after all, wants to be on the side of the torturers, the slave owners and the secret police?
There is no reason why people of every political persuasion should not vote in support of the Act. The political left – notwithstanding Sadiq Khan’s recent intervention – is broadly supportive anyway, while Conservatives should also support it because if Conservatism means anything it means upholding individual – otherwise known as “human” – rights. The Act is the single most important weapon that an individual citizen now has to defend himself against the arbitrary power of government.
Although in the minds of some, including many of those who should know better, it is associated with the EU, the Human Rights Act has nothing whatever to do with the “European project” and, unless it is repealed, it will remain in force whether or not the UK remains a member of the EU. Indeed, far from being some sort of mechanism for introducing continental law into Britain it is perfectly possible that the Act could, in the future, be used by British judges to restrain the EU from encroaching further into British life.
Nevertheless it is easy to see how a government driven to to distraction by the incredibly complex business of reforming, or extricating itself from, the EU will think that it can satisfy the appetites of the slavering dogs of nationalism by hurling them the bloody corpse of the Human Rights Act.
So now is the time, before the election, and before anyone claims a bogus mandate to take away our rights: by all means let’s have a referendum on the EU; and let’s also have one on the Human Rights Act.