It is not an advisory referendum

I am surprised by the number of people who think that once the result of the referendum result is known, it will then be up to Parliament to pass an Act, if it chooses to do so, to introduce the Alternative Vote (AV) in the event of a Yes vote.   A professor at the recent conference in Leeds thought it would be.  The same point was made on the Today programme earlier this week.

The referendum is not an advisory referendum.   The Parliamentary Voting System and Constituencies Act 2011 (section 8) provides that, in the event of a Yes vote, AV will be implemented by order.  No further legislation is required: Parliament has already stipulated what will happen consequent to the referendum: if there is a Yes vote, AV will be introduced for parliamentary elections and if there is a No vote it will not be introduced.

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About Lord Norton

Professor of Government at Hull University, and Member of the House of Lords
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15 Responses to It is not an advisory referendum

  1. Craig Prescott says:

    But can there ever actually be a binding referendum with the doctrine of parliamentary sovereignty? I mean it is always open to Parliament, if it wanted to, to ignore the result of the referendum and repeal s. 8? Of course, politically, that would be difficult, but legally, doesn’t Parliament retain that power?

    • Lord Norton says:

      Craig Prescott: Parliament can always repeal the provision, as with any measure, but unless and until it does so the 2011 Act has effect.

      • ladytizzy says:

        I noted elsewhere that some Acts have sections that have not been implemented, so what does “implemented by order” actually mean?

      • Lord Norton says:

        ladytizzy: Some Acts provide that sections may be commenced on a date set by the Secretary of State, and some sections – as you say – are never commenced. However, in this case, it is not discretionary.

      • ladytizzy says:

        Thank you for your reply. I am not clear how I may distinguish a section that has been or, is waiting to be, commenced; some sections that have never been implemented are now several decades old. Put another way: how do I know if I am breaking the law?

  2. Carl.H says:

    It is of deep concern that Parliament defers to the people on this issue, an issue that in all honesty would probably fail a parliamentary vote. That being so then why defer to the people who have not called for it ? The people have long called for referendums on other matters such as the EU but these matters are ignored. Does Parliament consider the AV matter of lesser importance ?

    It appears to me that Parliament or more noteably the Government have been blackmailed into accepting a vote that is to all intents against it’s wishes. Not only that but IF AV were to come about it would POSSIBLY put future Governments in a similar position time and again.

    The call, if any, has been for a more representational system of voting to be introduced which is certainly not AV as most of the “Yes” campaigns supporters have stated. It is a sign of weak Government that Parliament and the people have been put in this position. It is a sign of weak Government where the Deputy PM and some Ministers accuse the PM of dishonesty and lacking integrity.

    Our Parliament has conceded to blackmail, to the wishes of a minority whose intent is to gain power through this referendum. This act is about as unBritish as I have seen and is a sign that the UK is willing to give in to minorities.

    • Lord Norton says:

      Carl.H: I was one of those who voted for a threshold requirement. As I said on Second Reading of the Bill, one either has to have a threshold requirement or else make the referendum advisory. Otherwise, what happens if there is a turnout of less than 30 per cent of electors and they divide 51-49 in favour of AV? Parliament has tied its own hands regardless of how derisory the turnout may be and however close the result.

      • Tim says:

        Presumably, you assume the remaining electors don’t care either way, and since more have expressed a preference for AV than against it, you assume the electorate at large prefers AV to FPTP.
        (Or vice versa, if the vote goes the other way.)

      • Lord Norton says:

        Tim: I don’t assume anything, other than if people want change to our constitutional arrangements they need to demonstrate that by at least voting for it.

  3. franksummers3ba says:

    Lord Norton,

    I am reminded in your scenario of the 2003 campaign for a recall election in the Governor’s office in California. Here a simple majority of fifty percent plus one of the voters could choose to recall the Governor (which never been done successully). The same voters were able regardless of vote to choose a candidate and then could vote for one of a 135 qualified candidates on a FPTP plualitarian basis. As it turned out the recall was successful and Arnold Schwarzenegger obtained a substantial percentage as well a the needed plurality and was elected Governor in the same vote. http://en.wikipedia.org/wiki/California_recall_election,_2003

    In a later election, the people confirmed their choice by re-electing him in the regular process. In terms of finding porcedure scandalously unconventional outside the Westminster system, people find different ways of splitting the difference in the age-old tension between “government by laws” and “government by men”. Aristotle’s lyceum discovered that most of the thousand or so current or historic Greek governments by his time had used a partial written constitution which was above ordinary legislation and subject to some kind of ephorial or judicial review . This was true even if the ordinary governament was extreme in alotted power in one or the other classical forms of governance by the one the many or the few. The Bible story of Esther is quite true that the Medes and Persians with their godlike kings who could make any law after consulting viziers at on time could not repeal anyt law at all ever. American and the Bolivarian countries of course have a constitution taht must be specially ammended and is otherwis above ordinary law.

    Here in the British case we see a conservative tradition married to a radical idea of Parliamentary sovreignty. In terms of world opinion outside the Commonwealth I think we all watch procedural change there as uniquely amorphous when regarded as vulnerable to change and yet very structred in regard to its enactment….

  4. Chris K says:

    Frank: I would be very happy if we adopted a system where we could force a referendum by gaining enough support in a petition. I believe New Zealanders can force a referendum on any subject they if they get a petition signed by 10% of electors.

    Lord Norton: I read on ‘politicalbetting.com’ that the implementation of the voting system was dependent on the boundary changes coming into effect. http://www6.politicalbetting.com/index.php/archives/2011/04/18/how-av-can-be-stopped-even-if-its-a-yes/ Is that not the case either, then?

    • franksummers3ba says:

      Chris K,

      In the United States these things came in the Progressive Era mostly. Recall, Initiative and Referendum. But your point is well taken, most legislative creations of this kind are called plebiscites and are advisory. We have almost none of those. What we do have are almost entirely initiated or, as you put it, forced by signatures collected. That makes this procedure even mor unusual to me but justified given the conditions of the coallition…

    • Lord Norton says:

      Chris K: Yes, the order takes effect as the same time as the order implementing the boundary changes.

  5. Carl.H says:

    Just seen the build up introduced on the BBC it was introduced thus:

    The Yes campaign who said they want the system changed to a fairer voting system, led by Nick Clegg.

    And the No campaign who want to stick with FPTP led by David Cameron.

    Personally I feel that introduction is totally bias.

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