Scottish Office: Involving Civil Society in the Work of Parliaments

Involving Civil Society in the Work of Parliaments

Comparative arrangements for the use of referendums and initiatives

Within Europe the whole range of popular votes have been experienced - from plebiscites to constitutionally prescribed referendums. Plebiscites have most often been used during authoritarian regimes, such as in Germany and Italy under the Nazi and Fascist governments or under Communist rule in central and eastern Europe. Norway and Britain have used ad hoc referendums as have France (1945-6 and 1958-62), Greece (1974), Italy (1946) and Spain (1976 and 1978) during the change over between regimes.

Mandatory referendums are part of the constitutions of Austria, Denmark, Ireland and Switzerland and these are used to regulate issues such as sovereignty, constitutional change and international treaties. Optional referendums - largely decision-controlling - are a feature in Denmark where one third of MPs can ask for a popular vote on a bill passed by Parliament. Three referendums have taken place in Denmark since the mid-1980s and referendums are increasingly seen as an appropriate measure for solving political conflicts in Denmark although the system remains committedly representative. There is severe opposition to the introduction of direct democracy innovations from Danish defenders of representative democracy.

Switzerland & Italy are the only West-European countries with provisions for an abrogative or rejective initiatives. A similar mechanism - where the initiative lies with the citizen

- was proposed in the Netherlands by the Biesheuval Commission 1984. These initiatives allow for a popular vote on legislation that has already been considered and passed by Parliament. The vote is held at the request of a pre-set number of voters and is valid if a certain turnout is achieved and the majority reaches a set percentage of the electorate. Comparisons show these 'initiative' type of popular votes create the highest frequency of referendums.

The process suggested for Scotland in Standing Order 32 does not include the right for the people to propose new, or reject existing, legislation via a citizens' petition. Likewise the referendum proposed here would not be binding and there is no provision for a follow up plebiscite should the Parliament fall to fulfil the decision of the referendum.

The comparative arrangements for the use of referendums and initiatives are summarised in Figure 2, Figure 3 and Figure 4.

Figure 2: Comparative arrangements for the use of referendums

country	type of referendum	description	outcome
Austria	mandatory	in the case of legislation that involves any amendment or alteration to the fundamental principles of the constitution: the democratic, republican, federal principles and the principle that government activity is bounded by law. If constitutional legislation does not involve these fundamental principles then an optional referendum must take place if one third of the members of either chamber requests.	binding
Austria	optional decision- promoting	majority of National rat allowed to call popular vote on any act of legislation it passes.	advisory
Denmark	mandatory	on any constitutional amendments. An amendment proposal when passed by parliament and, following an election, by the new parliament - is then submitted to the voters for approval or rejection. Approval requires a majority of participating voters and at least 45% of the entire electorate.	binding
Denmark	optional decision- controlling rejective	one third of MPs can ask for popular vote on a bill passed by parliament Rejection of the bill requires a negative majority of at least 30% of the electorate.	binding
France	constitutionally prescribed decision- promoting	president on the proposal of the government can promote a referendum on bills concerning the organisation of public authorities and issues such as ratification of treaties. The use of the referendum has declined since the time of De Gaulle who would use the device to weaken the authority of the political parties.	binding
Ireland	mandatory decision- controlling rejective	any amendment to the constitution. Parliament must agree to put a proposal to the people (it does not vote on the proposal itself) and then a simple majority among those casting valid votes must vote in favour of the change. 17 have taken place since 1937 but the use is increasing.	binding
	optional decision- controlling rejective	on ordinary legislation in the event of conflict between upper and lower houses. A majority of members of the Seanad and at least a third of the members of the DáiI can petition the President not to sign into a law a Bill passed by the DáiI but instead to submit it to a referendum. It can be vetoed by a majority of voters which also amounts a third of the electoral register. This power has never been used.	binding
Italy	optional decision- controlling abrogative .	Constitutional Court determines whether re- quests for the abrogative referendum are admissible as some laws are excluded (tax, budget, amnesties, pardons, ratification of international treaties). 5 regional councils can ask for abrogative referendum. The vote is valid only if a majority of those entitled to vote participates. Object is the partial or total annulment of a law already in force. First used in 1993	binding
	optional decision- controlling rejective	vote on constitutional amendments passed by parliament but not yet enforced. 5 regional councils or one fifth of the members of the Chamber or Senate can ask for rejective referendum on constitutional changes that on the second reading failed to received two-thirds majority in either Chamber. valid even if turnout is under 50% of the electorate.	binding
Spain	optional decision- controlling constitutionally prescribed decision- promoting	one tenth of the members of either chamber can ask for referendum on constitutional amendments passed by parliament referendum can be held on major issues on the proposal of the prime minister, with the approval of parliament
Sweden	optional decision- controlling rejective	pending constitutional amendment must be referred to a referendum if requested by a tenth of the members of the Riksdag and if the request is supported by a third of MPs. Must occur simultaneously with a general election. If the vote is not rejected by a majority then the final word still rests with the Riksdag. Not used to date.	semi- binding
	constitutionally prescribed decision- promoting	majority of Riksdag can promote consultative referendums on any issue, they also decide the questions to be posed and the timing. Five have been held since 1922.	advisory
Switzerland	mandatory
	optional decision- controlling	8 cantons can ask for a rejective referendum


Figure 3: Comparative arrangements for the use of initiatives

country	type of initiative	description	Outcome
Switzerland	decision- controlling rejective decision- controlling abrogative	a. to approve or reject bills just passed by parliament b. to approve or reject international treaties to approve or reject constitutional urgent decrees applicable for more than one year'. Object is a decision already in force.
Switzerland	decision- promoting	initiatives can propose total or partial revision of the constitution
Swiss cantons	decision- promoting	initiatives can promote statute laws
Italy	decision- controlling abrogative	must be requested by a petition of 500,000 electors. Electors signatures must be collected and filed within a period of 90 days. Constitutional Court decides admissability. The vote is valid only if a majority of those entitled to vote participates. Object is the partial or total annulment of a law al ready in force.	binding
	decision- controlling rejective	vote on constitutional amendments passed by parliament but not yet enforced. 500,000 voters can ask for rejective referendum on constitutional changes that on the second reading failed to received two-thirds majority in either Chamber. valid even if turnout is under 50% of the electorate.	binding
Austria	popular petition	must be supported by at least 100,000 eligible voters, or by at least one-sixth of the electorate in each of three federal provinces. The Nationalrat is then obliged to debate and reach decision on the issue of the petition but does not have to pass the proposed legislation. Only 3 petitions only of 16 have had any effect on legislation.	advisory


Figure 4: Use of referendums at local and regional level in Europe

country	description
Austria	Some municipalities have plebiscites and referendums which are not binding on the Council. Referendums are instituted mainly by local councils. 3 lander (Tirol, Vorarlburg, Steiermark) can organise referendums upon the written request of 25% of the electorate.
Belgium	No statutory basis for the organisation of local or provincial referendums.
Finland	Local Government Act regulates local consultative referendums. Municipal councils have the right to decide whether or not to hold a referendum.
France	No provision
Germany	8 Lander use local referendums on major issues. This can be initiated by the Lander or by a citizen's petition. If successful the citizens' decree cannot be amended for 2 years.
Greece	No provision
Italy	Referendums can only be held on matters within the remit of the local authority and can not be held at the same time as elections.
Norway	Consultative referendums on issues covered by local government.
Netherlands	Consultative referendums allowed.
Spain	Referendums permitted at regional and local level. Plebiscite can be requested by the electorate at a local level.
Sweden.	Referendums permitted at municipal and county council level

Italy & Switzerland: extensive use of direct democracy

In Europe only Italy and Switzerland use referendums and inltiatives with any great frequency and these are the only places where electors have the right to demand a country-wide popular vote. Swiss electors have been called to the polls up to 4 times per year to vote on a number of different issues. In 1994 Swiss electors voted four times on 16 issues at the federal level on top of cantonal and communal referendums.

Under Italian law the electors can only be called to vote once per year regardless of the number of issues under consideration. In 1990 electors had to vote on 3 issues; in 1995 on 12 issues. The growth of referendum use began after World War II in Italy but the majority have taken place since 1971. 38 questions were put before the Italian electorate between 1971 and 1995 to annul - completely or in part - existing laws.⁹ Although referendums are mandatory for changes to regional boundaries they have not been a signiticant feature at the regional and communal level. Italy is particularly distinctive in that it allows for electors to request a popular vote on statute laws and changes to the constitution.

Switzerland is the 'world leader in the use of direct democratic devices'¹⁰ although this approach is not without critics. Neidhart has argued that the use of the referendum in Switzerland, and in particular the use of the rejective initiative, has had a profound impact on the whole political system. It has given rise to the 'politics of concordance' where everybody is included in the legislative process because all interest groups are capable of imposing a veto. This, Neidhart argues, tends to promote compromised and inoffensive legislation which is unlikely to attract a challenge. The rejective initiative tends to be used most frequently by the political right. It makes change difficult and so promotes conservatism. The initiative for constitutional change has been used more by progressive parties. The initiative provides an important channel and focus for movements outside the political establishment but it is the conservative right that has been able to use the initiative most effectively.

It is very difficult and expensive to launch an initiative and groups are forced to moderate their goals in search of coalitions. 100,000 signatures have to be collected within 18 months and if the initiative qualifies for the ballot the initiative committee has to organise the voting campaign. A large share of any organisations resources have to be concentrated upon the initiative process which can lead to the breakdown of a movement after the vote. The organisation of an initiative generally requires a bureaucratic and centralised structure on the part of the movement.

Direct democratic procedures make the political process much more unpredictable. The political elites are unable to keep the process under their control. Some critics have argued that direct democracy in Switzerland has led to inefficiency and ungovernability. In particular the rejective initiative is seen to make Switzerland incompatible with the membership of the European Union. The priority of European law with respect to the national law of the member states would not permit many aspects of Swiss direct democracy. However suggestions have also been made calling for extensions and improvements to direct democracy in Switzerland. These have included the introduction of 'constructive referendum' which permit modifications to a bill rather than just a simple veto and the abrogative referendum which would allow a bill to be repealed only after it had been tried for a certain period.

Figure 5: Andeweg's advantages and disadvantages of 'corrective' popular votes

For abrogative referendum

Against abrogative referendum

Citizens able to influence legislation directly

For today's individualistic citizens, having the opportunity to challenge legislation will increase the legitimacy of representative democracy

The closed circuit of log rolling and compromise within the political class is opened up

Anticipation of a possible referendum will improve the quality of legislation

'corrective' referendum supplement rather than

subvert representative democracy, as only bills.accepted by Parliament can be submitted to referendum

'corrective' referendum do not allow politicians to shunt responsibility to the people as they have already made a decision

The wording of the question is not open to manipulation

Numerical thresholds make it less likely for refer-endums to be held on subject only of minority interest.

Citizens may lack the necessary expertise to pass judgement on complicated bills.

Representative democracy is weakened by incorporating an element of direct democracy.

The risk of deadlock if voters reject a proposal and there is no parliamentary majority for an alternative.

Extra costs in terms of time and money.

Voters may be motivated by other factors than the content of the bill.

As turnout in referendums tends to be low, there is a risk that a small, passionate minority imposes its will.

It provides an unnecessary extra instrument to well. organised and financed single issue groups.

Without any opportunity for compromise, it introduces a majoritarian instrument into a consociational democracy.

Summary of Issues

The majority of informed commentators on referendums stress the danger of making universal judgements about their nature and impact. The origin and consequences of referendums are specific to the particular civic and political culture in which they are utilised. They can be used to bring about hugely significant transformations - such as in South Africa and Chile - and to legitimise new nations and constitutions.¹¹ However although direct popular votes can be used to strengthen democracy they can upset the balance if used too frequently. A trade off has to be made between the impact of elections and the influence of referendums. Referendums are not, in any case, able to sustain democratic legitimacy on their own. This mechanism has to form part of an informed political and civic culture, in which debate about social and political issues is encourage and supported.

Referendums can, however, he seen as a way of recognising and engaging with the changed nature of political activity. They provide an outlet for forms of political action that are mobilised around single issues rather than attempting to revive traditional collective forms of politics. Referendums appear to suit a more individualistic citizenry that is no longer as permanently mobilised in collective organisations but that still follows politics and is willing to become active on an ad hoc basis around specific issues. The popular vote provides a link between individualised and issue-based political activity and political decision-making that needs to be collective and permanent.

Referendums: progressive or conservative? There is no consensus about whether referendums generally act as a progressive or a conservative force. On one hand, populations can often be more radical than the richer, middle-aged men that usually represent them but likewise they can be subject to the simplistic agendas of populist forces which can work against the protection of minorities. Referendums in west European countries since 1945 have generally tended to produce votes for rather than against change. However there is evidence to suggest that once campaigns get underway support for change amongst the electorate tends to decline.¹²

Risks

Referendums, as a form of direct democracy, are often seen as damaging to representative democracy because it weakens the power of elected authorities

Risk of manipulation due to wording of question (e.g. De Gaulle's referendums)

Risk that low turnout allows passionate minority to get its way (referendum turnout usually lower than elections)

Opportunity for politicians to escape responsibility for unpopular or difficult measures (e.g. on European integration issues) - the 'Pontius Pilate function'.

Citizens often lack knowledge and informed opinion about the issues submitted to vote

Forces decisions rather than promotes consensus

Can be dangerous to the interests rests of minorities.

Innovative forms of democratic participation:

Introduction

One of the arguments that is often raised against increasing citizen participation in political decision making is that ordinary citizens lack the level of expertise or technical knowledge necessary to make informed judgements. A number of innovative forms of citizen participation, such as consensus conferences, citizens juries, deliberative opinion polls and citizens panels aim at giving citizens access to information and a chance to discuss the issues prior to asking their opinion. Since these methods of gaining an 'informed' view from citizens have now been tried in several countries it is possible to begin to assess the advantages and disadvantages of such innovations. This section of the report concentrates on the four methods of participation mentioned above.

There is a good deal of literature already in existence on methods of increasing community participation. The New Economics Foundation, for example, has published a guide called Participation Works! outlining 21 techniques of community participation such as future searches, action planning, social auditing and community indicators.¹³ However, given the remit of this project we have concentrated on methods of citizen participation that might be used at a parliamentary level rather than at local level. We have also focused on forms of participation which are already in use in other countries and we have concentrated on providing detailed discussions of four methods rather than an exhaustive list. For each of the methods considered below we have provided an overview of the method; a brief general description; examples and a discussion of the experience of using the method in the UK and in other countries At the end of this section we offer a discussion of the main issues to be addressed if these methods are adopted.