On referendums on constitutional change

In the UK, we have had two sorts of referendum on constitutional changes. We’ve had ones like the 2011 AV referendum, where a full Act of Parliament has been passed, and the referendum is on whether or not to implement it. At this point, we, the voters, know (insofar as it is possible to know anything in politics) what the consequences of the decision will be.

The other sort are like the 2016 EU referendum or the 2014 Scottish Independence referendum, where the specifics haven’t been spelled out. Now, to be fair to both of these, they would involve international negotiation to implement, and the international negotiators would not be much inclined to do that negotiation without a reasonable prospect of it being implemented.

Somewhere in-between are the 1997 referendums on Scottish and Welsh devolution, where the terms of the deal had been worked out, but there wasn’t a complete Act of Parliament. Still, I don’t think many people who voted in 1997 would have said that the Scottish Parliament and Welsh Assembly weren’t what they voted for.

Whereas, I suspect that quite a few people who voted on the EU referendum are saying “this isn’t what I voted for”. And, equally, quite a few people voted against Scottish independence on the grounds that they didn’t know what it would look like. I think this kind of referendum is a problem, and, after the EU referendum, I think I have worked out a solution to the having these sorts of questions resolved through referendum without creating the problem of voting for one thing and getting something else altogether.

My proposal is that, as a constitutional convention, we should hold two sorts of referendums on constitutional changes.  One sort are what I call a “ratifying referendum”. A ratifying referendum is one where there is a specific proposal, either a complete Act of Parliament just awaiting the referendum result to implement, or a detailed proposal like the Scottish Parliament and Welsh Assembly.

As a general principle, where possible, we should be presented with ratifying referendums, where a specific, detailed proposal is placed before the people to say “yes” or “no” on.  In Parliamentary languate, a Third Reading not a Second.

The other sort are what I call “pre-negotiation referendums”. These are a referendum on whether, in principle, to do something. In general, these should be avoided, as they risk the whole “not really knowing what you’re voting for” problem, but there is a case where they are legitimate, and why I’m calling them “pre-negotiation”. If, to implement the change, representatives of the people have to negotiate with outside powers – ones outside of the electorate of the referendum, that is, then those outsiders (other countries, or other parts of the UK) could, quite legitimately, refuse to negotiate seriously if the government was saying “we’ll put this to a referendum”, especially if the polls say it will be rejected.  However, in this case, there should also be a requirement for a ratifying referendum once the details have been worked out.

So, for Scottish independence, there would be a vote on whether in principle, Scotland should become independent and start negotiations to that effect. Then, before making any irreversible decisions, the Scottish Government would return to the people (in, just to be absolutely clear, a second, ratifying, referendum) with a detailed, agreed, negotiated plan – agreed with the British government and with all the relevant international institutions (EU, UN, etc). Then the Scottish people could ratify that, or not.

The same would apply for leaving the EU – they wouldn’t trigger Article 50 until the second referendum (and, equally, Cameron’s renegotiation wouldn’t happen until after the first; so you could have two parallel negotiating tracks with the British people able to choose between them).

Obviously, it could be that the EU refuses meaningful negotiations without triggering A50, but in that case, you’d put to the people explicitly that we’d trigger A50 immediately on a Leave vote and be out on our ear two years later with no prospect of retaining any relationship with the EU.

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