Referendum questions

A referendum is the will of the electorate. But just which electorate and how many of them?

Whether people like it or not, referendums are an established part of the way things are done in this country. It's been nearly a century since the first legislation was passed establishing them (the Temperance (Scotland) Act 1913 which allowed for local referendums on prohibition in Scotland) and they've become ever more common in recent years.

But less clearly established are the basics for referendums like who gets to vote, the precise requirements for a change to take effect and who selects the options available & writes the question. In the run-up to just about every referendum I can remember there have been rows over at least one of these. This ad hoc approach is not terribly constructive and it may only get worse with a referendum on Scottish independence that brings the prospect of a fourth mess, determining which legislature has the power to run the vote.

Determining who gets to vote is a mess to start with. We have several different electorates in this country, mainly because of the different voting rights of ex pats, EU citizens, members of the House of Lords and so forth. The result is some people can vote in some elections and not others. So which ones should get to vote in a referendum when it isn't obvious which tier of government it affects? And there's a further problem that ex pats within the rest of the United Kingdom don't get to vote at their former homes, whereas ex pats within the rest of the world do. Would it be fair if there was a referendum in Northern Ireland and a Belfast man who'd moved to Dundee didn't get a vote but one who'd moved to Dublin did? And then there's the issue about whether the voting age should be lowered for individual votes - which was already tried in an unsuccessful amendment to the AV referendum and which may be tried again for the Scotland vote. Will the young get the vote only when they might be expected to vote the right way?

Threshold requirements are another mess. Practice around the world varies quite widely - some jurisdictions require only a simple majority for change to be enacted, but others have all manner of additional requirements - minimum turnouts, minimum proportions of the total electorate, majorities in a minimum number of constituencies, supermajorities (60% or 67% are both quite common) and more. All of these are in place because of a belief that a change brought about by a referendum will be long lasting and should be resistant to a minor swing in public opinion undermining it. But these thresholds are normally predetermined in advance. Since most referendums in the UK have been called by those wanting to make a change by popular backing, unsurprisingly there's been a reluctance to add conditions that might make a change victory less likely. We've probably now reached the stage where it's too late to introduce such thresholds. That may seem democratic but it must be worrying that some referendums, particularly those creating elected mayors, have had very low turnouts - the lowest I'm aware of was 10% in Sunderland. There is a point where the result stops being the will of the people and becomes the will of the too few.

What about who gets to select the available options and write the question? We've already seen the opening shots in this debate this week. It's a difficult one with no obvious answer and for that matter the UK precedents aren't so great. We've only had two comparable referendums, one on which country Northern Ireland should be in, the other on whether the UK should stay in Europe. Here are the exact questions:

Northern Ireland referendum 1973:

• Do you want Northern Ireland to remain part of the United Kingdom?
• Do you want Northern Ireland to be joined with the Republic of Ireland, outside the United Kingdom?

European Community referendum 1975:

• Do you think the UK should stay in the European Community (Common Market)?

Both are simple and to the point. There's no reference in the former to precisely how Northern Ireland should be governed, regardless of which country it is in, whilst the latter similarly makes no reference to the revised terms of membership negotiated by the Labour government of the day. Nor were there multiple options to decide between, and thus no rows about which system to decide between the options.

But it could be more complicated. One case from elsewhere that is often brought up in relation to Scottish independence is the 1995 Quebec referendum. This asked the voters of Quebec the following question:

• Do you agree that Quebec should become sovereign after having made a formal offer to Canada for a new economic and political partnership within the scope of the bill respecting the future of Quebec and of the agreement signed on June 12, 1995?

And if you think that's complicated, the 1980 referendum question was even longer:

• The Government of Quebec has made public its proposal to negotiate a new agreement with the rest of Canada, based on the equality of nations; this agreement would enable Quebec to acquire the exclusive power to make its laws, levy its taxes and establish relations abroad - in other words, sovereignty - and at the same time to maintain with Canada an economic association including a common currency; any change in political status resulting from these negotiations will only be implemented with popular approval through another referendum; on these terms, do you give the Government of Quebec the mandate to negotiate the proposed agreement between Quebec and Canada?

(And considering the ballot paper was bilingual that's a monstrous piece of paper.)

Now a quick reading of the 1995 referendum question suggests a Yes vote would mean there was a mandate to negotiate a different relationship and that no lasting change would take place as an immediate consequence of a Yes vote. After all that was the position in 1980 (and the earlier referendum question explicitly stated it). However the 1995 referendum was somewhat different. This became an issue in the referendum itself, with disputes about just what a Yes vote would mean.

One major consequence of the referendum was the federal parliament passing the Clarity Act which basically gave the federal House of Commons the power to decide if a future referendum question was "clear" or not, to determine the threshold for change, and effectively to veto a referendum vote if it was deemed to have not complied. The Quebec National Assembly passed counter legislation asserting a simple majority is sufficient and that no other parliament or government can impose constraints on Quebec. That particular legislation has the snappy title of An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State. To date the supremacy of these pieces of legislation has not been tested in the courts.

Now the Scotland situation has not reached the levels of Quebec but if the current rows between London and Edinburgh aren't resolve soon then we could face a similar mess but I really hope it doesn't descend to a Quebec style mess of disputed questions, Clarity Acts and sovereignty assertion acts, complete with lots and lots of lawyers rowing for all eternity.

However in the long run something needs to be done to take the sting out of these questions. Ideally there needs to be a broad consensus across the board, and perhaps a standing committee to determine the options & questions, so that when a referendum is announced there will be no uncertainty about any of the factors, let alone a dispute about them. Until then each referendum will bring many more questions than just the one on the ballot paper.