The referendum as a constitutional tool

03 October 2017 - by Quintin Oliver

The extraordinary scenes from Catalonia contrast sharply with those of Kurdistan a week earlier – and give lie to the presumption that the Middle East is more violent in its politics than developed western Europe.

Down Under, another contested ‘postal poll’ on equal marriage in Australia is nearing its conclusion, with a high turnout expected to give added validity to the non-binding result, it having failed to be endorsed as an official referendum by the state. 

So what is happening to the referendum as a constitutional tool?

Volatile is now the norm: Scotland 2014 (a narrow defeat for secession), Ireland 2015 (a huge win for equal marriage), Colombia 2016 (a razor-thin loss for those advocating the peace agreement), Italy 2016 (a thumping riposte to the agenda championed by Prime Minister Renzi), Brexit 2016 (Leave’s four-point victory) and now the hotly disputed wins for Kurdish and Catalan independence.

So what does this mean for the referendum – our 1998 outing on the Belfast/Good Friday Agreement looks comparatively tame in comparison. It was set up by law, agreed between all parties, and regulated and observed internationally. It resulted in a clear expression of views on a post-negotiation settlement (unlike most others, which are pre-negotiation or aspirational in intent); even Northern Ireland’s ‘border poll’ in 1973, successfully boycotted by nationalists and republicans, passed off in a relatively peaceful fashion.

The answer is somewhat technical, if not tedious. Referendums:

  • Are tools best deployed by mutual agreement (of competing sides), such as the ‘Edinburgh Agreement’;

  • Come with a firm legal basis, to underpin their legitimacy and allow for regulation – think Catalonia and Kurdistan (not);

  • Are internationally observed, to test if they are ‘free and fair’. Colombia was in the midst of conflict, while Catalonia had no regulated observers taking part (as opposed to interested observers);

  • Are voted on by agreed and provable electorates. In Catalonia, voters could print their own ballot papers, and vote anywhere; in Scotland, the franchise was extended to 16-year-olds; in Kurdistan diaspora voting was significant. Multiple choices must be made openly and fairly.

We have a long way to go until the referendum is returned to its original state: an ‘issue to be determined by the people’.