THE CANADIAN EXPERIENCE
IN AN INTERNATIONAL CONTEXT
Law and Government Division
A. Authority for the Referendum
2. A Referendum Statute
A Specific Statute
B. Originating a Referendum
2. Legislature or Political Party
People or Local Government
C. Wording the Question
D. Effect of a Referendum
1. Referendums and Plebiscites
4. Plebiscites or Consultative Referendums
E. Subject of Referendum
1. Constitutional Amendment
2. Territorial or Sovereignty
Moral or Political Issues
Bill C-9, the Canada Referendum Act (1978)
F. Regulating the Referendum Process
Grouping the Interests
Financing and Media Access
G. Counting the Vote
REFERENDUMS: THE CANADIAN
IN AN INTERNATIONAL CONTEXT
Referendums have a long
and varied history. In modern Western democracies, they have been used
in some Swiss cantons since the sixteenth century and in various states
of the United States of America since the eighteenth. Switzerland is the
only nation to have held a large number of nationwide referendums, however,
accounting for over half of all national referendums ever held in the
democratic countries. Indeed, statistical summaries of referendums often
omit Switzerland because including that country skews the results. Referendums
are both more and less widespread than is often thought. Almost every
Western democratic country, the United States being the most notable exception,
has used national referendums at least once; however, as of 1978, only
four had held as many as 10: France (20), Denmark (14), Australia (39),
and Switzerland (297 since 1848, when Switzerland became a federation).(1)
Discussions of referendums
tend to vary in terminology and approach. There is, for example, no definitive
breakdown of the various types of referendum. The second part of this
paper (Context), therefore, discusses various aspects (who initiates the
referendum, the effect of the referendum, the purpose of the referendum,
etc.), and gives examples of how various countries deal with these.(2)
Referendums or plebiscites
can cover a wide range of topics, and have greatly differing effects.
In Canada, referendums have been used primarily at the provincial or municipal
level to deal with specific statutory issues, such as the prohibition
of liquor sales or daylight saving times.(3) This paper, however, does not deal with provincial,
municipal or state experiences, but only with referendums at the national
level. The one exception, understandably, is the Quebec referendum of
1980, which, although technically a provincial plebiscite, was modelled
on national referendums elsewhere.
Throughout the paper, there
are references to Canadas two national referendums (on prohibition,
1898, and on conscription, 1942), to the Confederation referendums in
Newfoundland in 1948, and to the various referendum criteria proposed
from 1978 to 1980: in the Quebec Referendum Act used for the 1980
referendum on sovereignty-association; in the proposed resolution respecting
the Constitution of Canada, 1980; and in Bill C-9, 1978, the proposed
Canada Referendum Act.
Finally, it is important
to remember that the experience of unitary countries with referendums
may be of limited use to a federal state such as Canada. Although many
American states, particularly California, are experienced in using referendum
procedures, a referendum has never been held at the national level in
the United States:
unconstitutional at a national level in American politics. Congress
cannot make a decision by referendum; it is clear that the courts
will say that Congress could not put to a referendum a binding
question of national policy. Second, it is inherently inconsistent
in the federal system; that does not say it is not convenient,
it is merely inconsistent. The full arrangement of the American
political system at the federal level is a delicate balance between
population and geography; it is inherently unrepresentative in
many of its aspects.(4)
In both of Canadas
national referendums, the geographic or federal aspect has been a major
issue. In the prohibition referendum of 1898, only 44% of the populace
bothered to vote, and prohibition was approved by a margin of 51% to 49%.
Quebec, however, rejected prohibition decisively, by 122,614 to 25,582.
In the event, the federal government seems largely to have ignored the
results of the referendum, leaving the matter to the provinces instead.
Nonetheless, the incident indicates the inequity that could come about
if the results of a referendum approved by less than one-quarter of the
eligible electorate were imposed on a province that had rejected it by
a measure of almost 5 to 1.
In 1942, the problem was
illustrated in even starker terms. Sixty-four per cent of eligible Canadians
voted to release the Mackenzie King government from its pledge not to
use conscription for overseas service. However, 72% of Quebeckers voted
"No." Since many in Quebec believed that the promise had been
made specifically to their province rather than to the country as a whole,
the results exacerbated, rather than mitigated, the divisive nature of
the conscription issue.
Aside from issues of jurisdiction
and geographic fairness, the dynamics of a referendum in a federal state
are not always helpful:
In Australia, a
federal constitution presents jurisdictional problems and her
referendums have ranged from the regulation of airlines to the
outlawing of the communist party. Almost all the referendums have
involved an extension of federal power and 78 per cent of the
propositions have been defeated, largely through the whipping
up of provincial loyalties.(5)
The reasons given in favour
of referendums vary widely, and depend to a considerable degree on the
type of referendum involved. One of the most common type relates to constitutional
change, which many argue should be legitimized by popular consent. In
other cases, especially those involving issues of territoriality, sovereignty
or government structure, the government may decide that a popular vote
is required to confer the necessary degree of legitimization. Where a
substantial moral issue is involved, such as prohibition, divorce, or
abortion, the government may wish to pass responsibility back to the electorate.
Finally, referendums can be used to solve a political problem, such as
an issue which causes intra-party splits (the United Kingdom EEC referendum
in 1975), or where a government needs to resolve a difficult political
dilemma (the Canadian conscription referendum of 1942, or the Scottish
and Welsh devolution referendums of 1979).
On a more theoretical basis,
proponents of the referendum process argue that important constitutional
changes should not be made over the heads of the people; that referendums
allow more effective popular control of public authorities; and that evolving
concepts of democracy mean that a government can no longer rely on a simple
majority of Parliament where major initiatives are involved.
The most avid proponents
of direct democracy go further, and argue that a greater use of referendums
would ensure that all issues were dealt with, not merely those of interest
to the party in power; that governmental decisions would be brought closer
to the people, ensuring, it is hoped, a greater degree of responsibility
and interest; that public decisions would be publicly arrived at; that
the will of the majority would be accurately expressed; that voter apathy
and alienation would be forestalled; that the long-term public interest
would be better served by voters considering the next generation than
by politicians considering the next election; and that citizens would
be able to maximize their own potential through increasing involvement
in the democratic process.
On the other hand, there
is also evidence that referendums can act as a barrier to change as often
as they facilitate it. It has been suggested that "the referendum
device has one enormous danger; used as it is likely to be used in Britain,
it places an undue power in the hands of the parliamentary majority of
the moment. That majority can exploit and misuse it."(6)
The other major criticism
of referendums are variants on the themes that they:
- undermine representative democracy;
- can be destructive of minority rights.
Each of these arguments
can be true in some situations, and untrue in others. In a representative
democracy, for example, a member of the legislature is elected by the
people to use his or her best judgment on behalf of the electors. The
judgment and consciences of the members of the legislature are paramount.
In a direct democracy, such as Switzerland, it is the judgment of the
public that is paramount. A binding referendum, or one initiated by the
public, clearly fetters representative democracy, but is consistent with
direct democracy. However, a non-binding plebiscite, called by the government
to gain approval for a specific action or piece of legislation, can be
a valuable tool even in a representative democracy.
One British commentator
describes such plebiscites in this way:
Of course, our Constitution
exists in six unwritten words: The Queen in Parliament is supreme.
Those of us who believe in that kind of constitution and do not
want a written constitution must admit that there is nothing incompatible
with that and referendums; if Parliament in its supreme wisdom
decides that a referendum is an aid to its processes, then it
is perfectly constitutional.(7)
Even with plebiscites, or
consultative referendums, the issue is not always simple. On the one hand,
a plebiscite may enhance representative democracy by conferring additional
legitimacy on a controversial governmental initiative. On the other hand,
such plebiscites, if overused, may still give elected representatives
an excuse to avoid exercising their own conscience and judgment. According
to one western American politician:
I come from a state
where referendums and initiatives are common; they have the great
vice of weakening the will of legislators to tackle difficult
problems. It is so easy to let the public decide whether there
should be abortion, whether there should be immigration, whether
there should be a tax, as we legislators say that we will leave
that to the sacred and sovereign judgment of the people.(8)
Whether referendums or plebiscites
undermine representative democracy or enhance it often depends upon the
intent of the referendum as well as its form. In some cases, the result
might influence a legislator to vote against his or her individual conscience,
as was the concern when the possibility of putting the issue of capital
punishment to a referendum arose in Britain. One influential Conservative
wrote to The Times of London in 1978 as follows:
Such a referendum
would raise all the grave problems of the authority of Parliaments
and the position of MPs in the most acute form
be no doubt that the majority of the public would support the
restoration of capital punishment
The only purpose of a
referendum would be to bring pressure on MPs to vote for a proposal
they would otherwise reject
I do not believe that whatever
the referendum disclosed, members would vote against their consciences
and so there would be no practical effect but the attempt to induce
them to do so would be profoundly misguided.(9)
Indeed, commentators cannot
even agree on whether referendums are an inherently conservative mechanism
or a force for change. They can be used as a delaying and/or educational
tactic, when it is perceived that a vocal or extremist minority has had
an undue influence on legislation, such as in the Scottish devolution
referendum. With the exception of those countries with a constitutional
requirement for referendums, the right to call a referendum generally
lies with the government. This makes it a powerful tool for the majority.
On the whole, government-sponsored
measures seem to be rarely defeated except in Australia and Switzerland.
Moreover, some such defeats have been the result of political miscalculation,
or have been subsequently negated.(10)
Australia stands out as the only country where government-sponsored referendums
have been defeated more often than not.(11)
On the other hand, in the
first referendum of the 20th century, the people of Norway
voted by 99.9% to separate themselves from Sweden, a country of which
they had been a part for two or three centuries. This sort of result leads
commentators to argue that: "the notion that referendums are barriers
to change is simply in sharp contradiction to the facts."(12)
Whether or not a plebiscite
is divisive can also depend largely upon the issue and circumstances.
On the one hand, reducing complex issues to a simple question capable
of a yes or no answer reduces the possibility of a consensus solution
emerging. Moreover, unlike legislation, the results of referendums are
usually impossible to ignore, even if it becomes clear that the effect
will be divisive and unsatisfactory.
The Irish referendums of
1983 (to incorporate the ban on abortion into the constitution) and 1986
(to allow for divorce after five years of marriage breakdown) provide
an example. The 1983 referendum resulted from a political error of judgment
by Prime Minister Garret Fitzgerald, combined with a determined pro-life
lobby. Critics of the referendum claimed that it was unnecessary, since
abortion was already banned in Ireland except where the mothers
life was threatened; sectarian, because it was opposed by the Protestant
and Jewish minorities; and potentially medically dangerous, in that the
proposed amendment could put the mothers life at risk.
The amendment passed by
a two-to-one majority, but only half the populace voted. The high rate
of abstention was generally considered due to disapproval over the divisive
nature of the referendum. The deputy Prime Minister described it thus:
Never in our history
have we seen a campaign that was so bitter and divisive as the
Neighbour has been turned against neighbour.
Eminent professional men have bitterly denounced each other in
public. The churches could hardly be further apart. Colleagues
in the same political party have launched personal attacks on
The Prime Minister himself
issued a statement on the eve of the referendum, apologizing for having
contributed to the rancour and division caused by the campaign, and accepting
a share of the responsibility for the holding of the referendum.
In 1986, Prime Minister
Fitzgerald initiated another constitutional referendum to allow for civil
divorces, confident that the liberal urban vote, together with the youth
vote, would carry the day. Instead, the referendum lost 60-40, with "city
pitted against country, young against old and state against church."(14)
In both cases, the results of the rancorous and emotional campaigns had
extra-national implications, affecting the countrys relations with
Northern Ireland and Britain.
On the other hand, divisiveness
seems to have as much to do with the immediate circumstances and politics
as with the referendum process itself. In Italy, a referendum can be popularly
initiated by 500,000 voters or by five regional councils, and in May 1974,
such a referendum approved legislation liberalizing divorce laws, with
no apparent ill-effects.
In 1978, Italy passed legislation
permitting abortions within the first three months of pregnancy. Subsequently,
two referendums were requested by the populace. The first (the "Catholic"
referendum) would have restricted the reasons for which an abortion could
be obtained; the second (the "radical" referendum) would have
allowed abortion at any time during the pregnancy. The electorate rejected
both proposals, the "radical" by 80% and the "Catholic"
by 70%. This is all the more remarkable since the attempted assassination
of the Pope took place towards the end of the campaign, and emotions ran
In Ireland, referendums
on abortion and divorce became divisive, and resulted in laws that were
more conservative than wished by the government. In Italy, referendums
on the same issues further legitimated legislation that had considerably
liberalized traditional views. There is no easy answer as to why the two
countries had such different experiences, but the comparison suggests
that it is dangerous to over-generalize about the nature and effects of
Perhaps the clearest defect
of referendums is the possible tyranny of the majority. The Swiss referendum
process allowed women to be denied the vote for much longer than in the
rest of western Europe, and allowed the forced expulsion of immigrants
from Switzerland to become a serious issue. Legislators, who are accustomed
to seeing firsthand the specific results of their votes, often tend to
be more tolerant than the public, which has less difficulty abridging
the rights of a minority with whom they do not identify. A British commentator
Nobody has any doubt
that if there were a referendum on capital punishment, there would
be an 85 per cent majority in favour of it: there would probably
be an 85 per cent majority in favour of repatriation of immigrants;
there might well be a majority in favour of abolishing the closed
shop and doing all sorts of terrible things to the trade unions.(15)
Arguably, the Dominion
Plebiscite Act of 1942 is an example of the dangers. Mackenzie King
had promised during the 1940 election that there would be no conscription
for overseas military service. Subsequently faced with a critical manpower
shortage, the government held a referendum asking the public to release
it from the election promise.
that during the 1940 federal election, the promises against conscription
had been made to Quebec, not to Canada as a whole, an argument
that was not at all unsound. After the election, all of Canada
was now being asked to free the government from its pledge to
Even with respect to the
interests of minority groups, however, there is another side to the issue.
Sometimes a minority consists of an active political lobby group trying
to push through legislation that does not have the support of the more
passive majority. It has been suggested, for example, that the Scottish
devolution referendum defused a political crisis by taking the initiative
from a radical element, and placing it before the people. According to
one British commentator:
The referendum is
an important constitutional tool; we need it in this country without
a written constitution. It is a delaying weapon, one that reasserts
the right of the majority to have its voice listened to at a time
when active, well-organized minorities too often can shift the
balance of power irreversibly.(17)
Overall, the reasons for,
and results of any referendum seem to have more to do with the issues,
events, personalities and politics surrounding it than with a generalized
"theory" of referendums. A description of General de Gaulles
referendums during the Fifth Republic illustrates the point:
The aims of the
referendum during the Fifth Republic may be summarized by an inelegant
and contrived alliteration: It was an instrument of consultation,
consensus, consent, consecration, confirmation, crisis, confrontation
and confusion. It purported to consult the people on major decisions,
to articulate a national consensus on such decisions and elicit
the consent of the people for their implementation, to give official
consecration to the new regime, to confirm the popular mandate
of the president, to correct the "distortions" of the
political system owing to excessive localism, to solve the crises
of Algeria and of the state, to induce a confrontation with parliament,
the parties and the traditional notables, and to confuse the opposition.
It was intended to be both constructive and destructive, creative
and nihilistic, consolidating and iconoclastic, infrequent in
its use yet enduring in its impact. But above all, it was intended
to be a powerful weapon of the president to be used whenever he
thought the circumstances demanded.(18)
Even when referendums are
held on similar subjects, at similar times and in similar countries, the
results can be different and unpredictable. For example, the comparison
between the Norwegian and Danish referendums on entry into the Common
Market in 1972 is frequently referred to in referendum literature. Referendums
are not generally part of the Norwegian constitutional process, but it
was generally accepted that one would be held on the issue of Common Market.
In the event, 78% of the popular voted and the vote was 53% against membership
and 47% for it.
The Norwegian referendum
was to have been consultative, requiring a subsequent three-quarter majority
in Parliament for final approval. Prior to the referendum, about two-thirds
of Parliament favoured entry, but it was expected that had the referendum
approved entry, the necessary parliamentary majority would have been obtained.
Furthermore, had the referendum not been held, many people had expected
the government ultimately to obtain the requisite three-quarter majority.
The result had a
profound impact on the political system, giving new prominence
to extra parliamentary pressure groups. It diminished the authority
and freedom of party political leaders and, ever since the referendum,
it imported into the political parties a lack of decisiveness
through fear of public reaction. There is, furthermore, a much
greater sense of alienation between the political parties and
the public today.(19)
On 24 and 25 September
1972, Norwegians rejected membership in the EEC by referendum; on 2 October
1972, Danes approved it. Referendums are more common in Denmark because
they are provided for in the constitution. A draft law put to referendum
is deemed rejected if a majority of the voters are against it, and if
those negative votes comprise at least 30% of the qualified electorate.
In Denmark, 90% of the population voted and EEC membership was approved
by 63% to 37%.
The reason for the difference
between two countries so closely related is difficult to explain. The
most commonly cited factor is the differing attitudes of each countrys
farmers and fishermen. In Norway, though farming and fisheries account
for about 12% of the population, the producer co-operatives were extremely
powerful and producer prices in Norway were between 20% and 30% higher
than within the EEC. On the other hand, Danish farmers, who numbered some
10% of the work force, were confident of their ability to compete and
expected benefits from EEC membership. Similarly, Danish fishermen, being
deep-sea rather than coastal, were more confident that the Common Market
would guarantee them a market.
Whatever the reasons for
the difference in the vote, and regardless of speculation as to what would
have happened had the results been reversed, the post-referendum results
were similar. "In both countries, the established party system was
smashed in the election of 1972 held shortly after the referendum."(20)
Indeed, it has been noted that "although the Danish establishment
won the referendum of October 1972, the following year saw a voter rebellion
stronger and more lasting than the one in Norway."(21)
Overall, referendums are
held to consult the people; to legitimize a course of action, especially
in areas such as constitutional or territorial matters that go beyond
the realm of daily government; or to resolve a moral or political problem
that for some reason does not lend itself to normal party politics. They
appear to work best when used sparingly, and reserved for major issues:
[The United Kingdom
Common Market Referendum] was one of those rare matters dividing
people so deeply that some sort of appeal is needed that is accepted
as more legitimate than a simple vote in the House of Commons.
To get the matter settled, to resolve the issue in favour of going
in, one had to find a mechanism for legitimacy. Consequently,
I would defend in a pragmatic way the occasional use of the referendum
on major constitutional issues where one can guarantee a reasonably
high level of interest among the people and where, because of
the nature of the party system or the electoral system or a combination
thereof, the choice between parties cannot easily settle the matter.(22)
A. Authority for the Referendum
In some instances, the authority
or requirement for a referendum is found in a countrys constitution.
The Australian constitution, for example, requires that amendments
be approved by an absolute majority of both Houses of Parliament and then
by a referendum. In the referendum, the amendment must be approved by
a majority of voters nationwide, as well as by a majority of voters in
a majority of states (or in four out of six states).
The French constitution
requires constitutional amendments to be approved first by Parliament,
and then by either a referendum or a three-fifths majority of the two
legislative Houses together. In addition, the President, on the proposal
of the government, can call a referendum on any bill dealing with government
organization or a treaty affecting government institutions.
The Irish constitution
provides that a bill amending the constitution must, after passing both
Houses of Parliament, receive a majority of votes in a referendum.
In Italy, the constitution
has several provisions with respect to referendums, but the only one that
has seen significant use is Article 75. This provides that a referendum
to repeal a law, other than one dealing with fiscal matters, treaties
or amnesties, must be called on the demand of 500,000 voters or of five
regional councils. A simple majority is sufficient for the law to be repealed.
The Danish constitution
allows one-third of the members of the Folketing to petition for a referendum
on a bill within three weekdays of its final passage. There are also provisions
for referendums on constitutional amendments or changes to the voting
age. In addition, legislation that delegates power to an international
authority must be approved by either a five-sixths majority of the Folketing
or by a simple majority together with a majority of voters in a referendum.
Danish law also allows the Folketing to adopt a law providing for a non-binding
referendum on any topic as a way of consulting people.
The Spanish constitution
provides for referendums on constitutional amendments if requested by
one-tenth of the members of either chamber of the Cortes Generales (Parliament).
In addition, a consultative referendum can be called by the government
on political decisions of special importance. Referendums were held in
1976, when the province of Andalusia was dissatisfied with the pace of
its talks with the central government, and in 1986 on whether Spain should
remain a member of NATO.
The Swiss constitution,
based on the concept of direct democracy, relies heavily on the referendum
process. All alterations to the federal constitution must be approved
by referendum. Constitutional amendments can be initiated by 50,000 citizens,
but historically it has been difficult to induce the electorate to accept
a popular initiative. Constitutional amendments, however initiated, must
be approved by a majority of the voters, and by a majority of cantons
(or eight cantons). Referendums can also take place on an ordinary law
when 30,000 citizens or eight canton governments demand that a law be
subject to a referendum within 90 days of publication. In this case,
only a simple majority of voters is required to abrogate the law.
The Proposed Resolution
respecting the Canadian Constitution, issued by the Trudeau government
in 1980 after the unsuccessful federal-provincial talks held in September
of that year, included a provision authorizing amendments by referendum.
The amending formula contemplated a referendum as an alternative to resolutions
by provincial legislatures, and would have required an absolute majority
as well as a majority in each of the provinces.(23)
2. A Referendum
Referendums can also be
held under the authority of a general authorizing statute. The Quebec
Referendum Act of 1978 allowed referendums on any question approved
by the National Assembly or on any bill adopted by the National Assembly.
Bill C-9, the proposed Canada Referendum Act introduced in 1978, provided
for a referendum on any question relating to the Constitution of Canada.
The Constitution was defined to include customs, conventions and enactments,
as well as national political and judicial institutions or processes.
However, to avoid permanently establishing referendums as part of the
constitutional process, the bill had a "sunset" provision of
3. A Specific Statute
Referendums can also be
held pursuant to a statute authorizing a single referendum on a specific
subject. In countries which do not have constitutional authorizations
or requirements for referendums, this seems to be the most common procedure.
It was used, for example, to authorize the British referendum on the Common
Market in 1975. Later, when the Labour government of Britain devised a
scheme for devolution of powers to the Scottish and Welsh assemblies,
it failed in the first attempt to get the legislation through Parliament.
Consequently, when an amended version was brought in, the government sought
to mollify the critics by providing that the bill would not be implemented
until approved by referendums in Scotland and Wales.
Prior to the 1970s, Canada
had passed specific statutes to authorize each of its referendums: the
Prohibition Plebiscite Act, 1898, and the Dominion Plebiscite
Act, 1942. When a referendum is authorized by a specific statute,
the question arises as to whether the actual wording of the question is
included in the statute, or is left to the executive. In both the Prohibition
Plebiscite Act and the Dominion Plebiscite Act, the exact wording
of the question and form of the ballot were set out. Section 8 of the
Prohibition Plebiscite Act, for example, stated:
- The ballot papers for the purpose
of voting under this Act shall be in the following form:
Are you in favour
of the passing of an Act prohibiting the importation, manufacture
or sale of spirits, wine, ale, beer, cider and all other alcoholic
liquors for use as beverages?
The Newfoundland Referendum
Act set forth both the form and the order of the questions, itself
a potentially contentious issue. Since three choices were offered (commission
government, confederation with Canada, and responsible government as it
existed in 1933), provision was made for a second referendum should no
choice gain an absolute majority on the first ballot. The Act also provided
that the option receiving the smallest number of votes would be dropped
from the ballot on the second referendum.
René Lévesque later referred
to the Newfoundland referendums as a precedent for multiple referendums
on the same issue:
So we had to prepare
[a referendum law] after studying what had been done elsewhere,
notably in Newfoundland, where the people were consulted on two
occasions prior to the entry of Newfoundland into Confederation.
We also studied the case of England when it entered the Common
Market, the Swiss cantons, and France
I formally exclude
a second referendum during the same mandate. Furthermore, our
law forbids this. For the rest, we cannot be sure
is a precedent for this, here in Canada
the province of
Newfoundland was the only one to be democratically consulted over
its entry into Confederation
The inhabitants of Newfoundland
were consulted twice
The precedent exists.(24)
However, the specific provisions
in the Newfoundland Referendum Act for reducing three options to
two make it a dubious authority for multiple plebiscites on a yes/no issue.
1. Executive Branch
In most cases, a referendum
proposal originates with the executive branch, either with or without
the formal consent of the legislature. Often, a referendum proposal is
approved by the legislature, but the impact of this check varies widely
depending upon the nature of the government concerned.
Section 11 of the French
Constitution of the Fifth Republic, for example, allows the president
to call a referendum on any government bill dealing with the organization
of the public authorities "on the proposal of the government during
parliamentary sessions." If the result of the referendum is favourable,
the president can promulgate the bill. Amendments to the constitution,
however, must be passed by both assemblies before being submitted to a
referendum (section 89). General de Gaulle, distrustful of parties
and parliamentary representatives, interpreted the referendum provisions
in a controversial manner, and used them to bypass Parliament.
The initiative for
holding all the referendums of the Fifth Republic lay squarely
and manifestly with the president of the republic. The referendum
of January 1961 on Algerian self-determination was announced by
General de Gaulle on 16 November 1960, and the "proposal
of the government" was made on 8 December. The referendum
of October 1962 on direct election to the presidency was announced
by de Gaulle as early as 29 August three weeks
before an unsuccessful attempt on his life when he declared
his intention of modifying the constitution "to ensure the
continuity of the state." He made his intention officially
known to the Council of Ministers on 12 September, and the
"proposal of the government" was made on 2 October.(25)
Aside from the highhandedness
with which General de Gaulle proposed referendums prior to a "proposal
of the government," at least two of the referendums (1962 and 1969)
involved constitutional amendments, and arguably should not have been
proposed under section 11 at all.
The Quebec Referendum
Act provides for questions to be moved either by the Premier or to
be contained in a bill. In the former situation, there is to be a 35-hour
privileged debate, allowing the wording to be amended or sub-amended,
prior to the final approval of the National Assembly. In the latter case,
the question would be adopted in the same manner as any other clause of
Under Bill C-9, the Canada
Referendum Bill, the question would have been proposed by the Governor
in Council, subject to the approval of the House of Commons and the Senate
after not more than 40 hours of debate. Only a member of the government
would have been entitled to propose a motion authorizing a referendum.
The referendum could have been held in one or more provinces, and have
involved more than one question so long as each question was capable of
a "yes/no" answer.
Under the federal constitutional
proposals of 1980, a referendum to amend the constitution would have been
held when directed by the executive and authorized by resolutions of the
Senate and House of Commons.
or Political Party
In Australia, there is no
technical requirement that amendments to the constitution be put forward
by the government of the day, and motions urging constitutional change,
and even bills with the same end, have been sponsored by the opposition
or private members, although never successfully. In Denmark, one-third
of the members of the Folketing can petition for a referendum on a bill
within three weekdays after its passage. In Spain, one-tenth of the members
of either House can call for a referendum on constitutional amendments.
3. People or Local Government
In some countries, referendums
can be originated by a given number of people or local governments, and
this is often called the "initiative," especially where the
results are binding.
In Italy, for example, a
referendum on constitutional amendments can be requested by one-fifth
of the members of either chamber, or 500,000 voters or five regional councils.
An ordinary law, except those relating to fiscal or treaty matters, can
be repealed by a referendum, if one is demanded by 500,000 voters or five
regional councils. This latter approach, of an initiative that can repeal
but not initiate legislation, is generally considered to have merit.
Switzerland allows for a
constitutional initiative when 50,000 citizens propose a referendum. As
with other constitutional changes, to become effective such proposals
must be accepted by a majority of those voting as well as by a majority
The referendum provisions
in the proposed Canadian Constitution of 1980 did not provide for popular
initiatives, but the matter seems to have been given some thought by the
The Canadian public
should have the right to demand constitutional change in a referendum,
Prime Minister Trudeau said [at the September 1980 federal-provincial
He told the provincial
premiers that an amending formula should include "some recourse
to the people" through a referendum to enable voters to override
provincial or federal opposition to constitutional change.
didnt elaborate, his proposal is consistent with a strategy
outlined in a Cabinet document leaked to provincial delegations
earlier this week [the "Kirby memo"].
The document said
Trudeau should float the idea that citizens could "initiate
referenda" in the event of negative action or lack of action
by Parliament or legislatures on an amendment proposal.
support the view that sovereignty ultimately resides in the people,"
the Cabinet strategy paper says.
The leaked document
suggests that three per cent of the national or provincial electorate
could initiate a referendum to make constitutional change. If
referendums were carried in enough provinces, the amendment would
The Quebec government in
1977 declared itself favourably disposed to the initiative in principle,
but felt that its introduction to Canada would need much more study:
The government is
in favour of gradually extending the procedures of consultation
to allow for a referendum originating with the people. It is obvious,
however, that such procedures could not be immediately introduced
without pushing aside a number of important factors.(27)
C. Wording the Question
The Newfoundland Confederation
referendums of 1948 are an example of how difficult it can be to find
the correct question. Canadians argued that the wording of the question
put commission government at an advantage. Anti-Confederationists argued
that it was unconstitutional to even include the possibility of union
with Canada on the referendum. Others felt that if union with Canada was
presented as a possibility, union with the United States should also be
added. The Canadian High Commissioner wrote to British authorities arguing
that the wording of the question had been decided at the insistence of
the Governor of Newfoundland: "I can only conclude that [British
officials] have been prepared to buttress his position even at the cost
of placing Confederation with Canada at a serious disadvantage."(28)
Denmark offers two interesting
examples of how the wording issue can be addressed. In the EEC referendum
of 1972, the electorate was asked to vote simply JA (yes) or NEJ (no);
no question was put on the ballot, which consisted only of the words "ja"
and "nej." A form attached to the ballot gave directions:
the bill relating to Denmarks accession to the European
Communities adopted by the Folketing: He who votes FOR the bill
puts an X at YES, he who votes AGAINST the bill puts an X at NO.(29)
Denmark was, however, already
used to an imaginative approach towards referendum questions. The constitution
prior to 1953 required the approval of 45% of the electorate (rather than
of actual voters) for constitutional amendments. This made constitutional
change rather difficult given that no more than 50% of the electorate
showed up for the first several referendums.
For example, a set
of amendments was strongly recommended in May 1939 by prominent
politicians representing the major parties, which had collectively
received more than 1.2 million votes at the election one
month earlier. Only 966,000 voters turned out to support the amendments,
however, and a 91.9% vote of yes proved insufficient since it
constituted only 44.9% of the Danish electorate.(30)
Obviously, something had
to be done. The government proposed a new set of constitution amendments,
which relaxed the requirements for future constitutional amendments. Since
it seemed that the trick was less gaining approval than having a sufficiently
large turnout, the government resorted to the "princess gambit":
constitutional changes were again submitted to the Danish electorate
in 1953, politicians took care to include a measure believed to
have great popular attraction a change in dynastic rules
making it possible for the young princess Margaret to succeed
to the throne. This seemed to do the trick. A vote of 78.4% yes
on a 58.3% turnout provided just enough votes in favour of the
new constitution, which relaxed the conditions for amendment although
it introduced new referendum provisions.(31)
Linking two separate issues
is not uncommon in a referendum, but it can also backfire. The French
referendums of 1961 (Algerian self-determination) and 1962 (independence)
both asked essentially two questions: "Do you agree with the policy
proposed, and do you want General de Gaulle to implement it?"
According to another commentator,
example of the dishonest and obscure question was that put in
the April 1969 referendum. It was deceptively simple: "Do
you approve of the bill dealing with the creation of regions and
the reform of the Senate?(32)
The bill in question was
8,000 words long, covered 14 tightly printed pages, comprised 69 articles,
and involved the modification and replacement of 19 articles of the constitution.
Revisions in the interim presidency provision were not even referred to
in the question. Even government supporters told the opinion polls that
they wanted to give separate answers to the two questions. In April 1969,
53% of the voters rejected the proposals, and de Gaulle, having made
it an issue of confidence, immediately resigned.
It is difficult to find
the balance between a question that is too simple, and one that is incomprehensible.
Commentators have suggested that the high percentage of referendum proposals
rejected by the Australian electors may result from simple frustration
with the wording of the question:
The very form of
the referendum ballot paper may put off some voters. The question
asks: "Do you approve the proposed law for the alteration
of the Constitution entitled
" followed by the short
title of the bill. In 1974, for example, the first question related
to "A Bill for an Act to facilitate alterations to the Constitution
and to allow electors in the Territories, as well as the States,
to vote at referendums on proposed Laws to alter the Constitution."
Not only are the words unfamiliar to most electors, but the wording
obscures the fact that the principal aim of this bill was to reduce
from four to three the number of states registering approving
The British EEC referendum
offers an example of both how delicate the issue of wording can be, and
of how little difference it can make in the long run.
Though it had been
suggested that more than one question should be posed on the ballot
paper, and that these questions might include one asking if the
voters preferred to leave the matter to Parliament, the government
felt that the advantage lay in simplicity. There would be only
one question on the ballot, and the wording proposed in the White
has announced the results of the renegotiation of the United
Kingdoms terms of membership in the European Community.
DO YOU THINK THAT
THE UNITED KINGDOM SHOULD STAY IN THE EUROPEAN COMMUNITY?
Debate ensued. At
the beginning of February, pollsters had tried out different formulations
which had produced a great variety of results, and they finally
concluded that if the issue was clear, by the end of a highly
publicized campaign, the wording would not matter. Despite these
findings, there were vehement arguments in Cabinet over the ballot.
The Foreign Office wanted to see a long preamble to the question,
while the anti-Market faction demanded that the words "Common
Market" replace "European Community." The Referendum
Bill finally adopted the question as worded in the White Paper,
though the government gave in to the demands of the anti-Marketeers
and agreed to add the words, "the Common Market" in
brackets, to the question. The final ballot read:
DO YOU THINK THAT
THE UNITED KINGDOM SHOULD STAY IN THE EUROPEAN COMMUNITY (COMMON
Even this wording
led to some administrative concern when it was found that the
printers had set "Common Market?" separately on a new
In Australia, fiddling with
the wording is not common because of the standard form of the ballot paper,
but the two conscription referendums of 1916 and 1917 were strangely worded
indeed. The 1916 question ran as follows:
Are you in favour
of the Commonwealth having, in this grave emergency, the same
compulsory powers over citizens in regard to the requiring of
their military service for the term of this war, outside the Commonwealth,
as it now has in regard to military service within the Commonwealth?
This was narrowly defeated,
and the Hughes government tried again at the end of 1917, with a question
that was terser but no more helpful to the elector: "Are you in favour
of the proposal of the Commonwealth government for reinforcing the Australian
Imperial force overseas?" This was defeated by a rather larger margin.(35)
This can be compared with
the Canadian effort at wording the 1942 referendum on conscription:
Are you in favour
of releasing the government from any obligation arising out of
any past commitments restricting the methods of raising men for
Perhaps the most interesting
aspect of the comparison is that the voters in both countries did
seem to know what they were voting for.
The issue of wording the
question is not irrelevant in post-war Canada. At an international conference
on referendums, held in England in 1979, the co-editor of the definitive
text on referendums made the following comment:
I am less upset
than some people by the bogusness of the question that may be
put in Quebec. There was a good deal of talk in Britain about
the wording of the question in the 1975 referendum, and there
was a poll study that asked the question hypothetically in eight
different ways, with major differences in responses to the different
formulations. People were upset at this. The wording of the question
about entry into the Common Market or the European Community did
not matter. At the end of an election campaign, where things had
been discussed fully, people knew perfectly well what they were
doing. They were voting yes or no. Nobody went to the ballot box
and actually read the words.(36)
D. Effect of a Referendum
Although the words "referendum"
and "plebiscite" are often used interchangeably, their origin
is different. The term "plebiscite" originated with Roman law,
and described a law enacted by vote of the plebians, or commoners, at
the request of a plebian magistrate.(37) It now describes a vote by the electorate
of a political jurisdiction, expressing their opinion on some specific
issue or question. The word "referendum" identifies a similar
method of "referring" an important legislative measure to a
direct vote. The term did not appear in English until the late nineteenth
century, but the Swiss cantons had decided issues ad referendum
200 years earlier.
Under this definition, plebiscites
are essentially consultative and are not legally binding on a government,
however great the political or moral obligation to respect the result.
Referendums, in the strictest sense of the word, create law directly with
no subsequent government intervention. The distinction is not always accepted,
however, and many texts use the term "referendum" to describe
non-binding consultative votes as well as binding referendums.(38)
For example, "The ABCs
of a Referendum in Quebec" defined the purpose of a referendum as
being "to consult the electorate on a given subject through polling
similar to that of a general election."(39)
The federal government, in its 1978 pamphlet "Canada Referendum Bill:
An Explanation," suggests that "modern usage in both languages
clearly favours referendum and the word plebiscite
seems to have lost all currency."(40)
On the whole, however, lawyers
tend to draw more of a distinction between referendums and plebiscites
than do political scientists. Perhaps this explains why, notwithstanding
the Canadian and Quebec pamphlets suggesting little difference, a 1989
article drew a clear distinction:
A referendum is
a legally binding verdict of the people which must be acted upon
by the government in the form of a law. Courts have held that
due to the principles of parliamentary government, Parliament
or provincial legislatures cannot be legally bound by such direct
lawmaking by the people. Only municipal councils may truly use
referendums in the sense that they may be held legally accountable
for the result.
A plebiscite is
little more than an expression of public opinion, it is advisory
only and not binding on government, whether federal, provincial
Perhaps one of the reasons
for confusion is that:
sometimes made between a referendum and a plebiscite between
a popular vote that is immediately legally normative and binding,
and a popular vote that carries merely moral authority
is one that seems limited to the English-speaking, common law
2. Binding Referendums
Binding referendums are
rare in parliamentary democracies, and are best suited to countries with
a tradition of direct democracy, such as Switzerland:
We have a different
view of referendums in Switzerland because we do not think that
we are a parliamentary democracy. We call ourselves a direct democracy;
therefore, constitutionally, it is clear that the ultimate power
is with the people
The Supreme Court of Switzerland is
never asked whether a popular referendum is permissible. The final
power is with the people. They are higher than any branch of government.
The Supreme Court would never declare any referendum unconstitutional.
Let me give two examples. The female vote was not introduced in
Switzerland until 1971
Is this unconstitutional? It is
not, as long as the people say it is not. It is not possible for
a Supreme Court to say that the people are violating basic human
Similarly, a constitutional
initiative launched to expel foreign workers from Switzerland was rejected
by nearly 60%; however, if it had been successful, the courts could have
done nothing to protect the foreign workers, even though they had legal
Switzerland had 297 referendums
between 1848, when it became a federation, and 1978. Votes on obligatory
referendums, or proposals that came from the Parliament, have usually
been positive, with 100 "yes" votes to 38 "no" votes.
Votes that have been demanded over parliamentary proposals under the optional
referendum procedures are more often negative than positive 51
"no" and only 34 "yes" votes. Votes arising from popular
initiatives are almost always negative, with 67 "no" votes to
seven "yes" votes. On the whole, therefore, the Swiss use of
the referendum appears to be very functional.
One area of concern, however,
is that Switzerland has a much lower turnout than that in neighbouring
countries, possibly as a result of the large number of votes. Moreover,
the average percentage of the population that votes has declined over
Overall, direct democracy
seems to run smoothly in Switzerland, although it does not appear to be
an exportable commodity:
is the home of the referendum. It is the country that has used
referendums most. It has made referendums an integral part of
its political life. It has shown that, at least in a small, sophisticated
country, direct democracy can work with almost none of the ill
consequences which have been ascribed to it in political argument
elsewhere. Switzerland provided the model on which American and
other evangelists for direct democracy based their cases in the
1890s and 1900s. And the Swiss can claim that the original continues
to work better than its imitators.(45)
Binding referendums are
not possible under the present Canadian constitution:
Under the present
constitution, a referendum has no direct legislative authority
since any such interpretation would trespass upon the powers and
functions of the Lieutenant-Governor
obstacle in no way diminishes the political value of a referendum
since the first binding law of democratic process is that of the
clearly expressed majority, and a government can always commit
itself explicitly to accepting the result of a referendum.(46)
3. Abrogative Referendums
The abrogative referendum
allows the electorate to reject or repeal a measure passed by the legislature.
The constitution of Denmark
provides that one-third of the members of the Folketing may call for a
referendum on a bill after it has been passed. For the bill to be defeated
by the referendum, a majority of votes cast must be in the negative and
these must represent at least 30% of eligible voters. The abrogative provision
does not apply to certain bills, most notably those dealing with fiscal
issues or treaty responsibilities.
Article 75 of the Italian
constitution allows legislation to be repealed by a referendum called
on the demand of 500,000 voters or five regional councils. Specifically
excluded are "fiscal or budget laws, amnesties or pardons, or laws
authorizing the ratification of international treaties." The implementing
law was not passed until 1970, and there had been nine referendums as
of 1986. The first referendum, in 1974, repealed the divorce laws, but
none of the later referendum proposals was successful. Four concerned
anti-terrorist legislation, two were proposals to restrict access to abortions,
and the others concerned state financing of political parties and automatic
There are some indications
that referendums on constitutional amendments tend to negate bills that
are particularly badly drafted. Perhaps this is simply because the voters
sense that a bill which cannot be logically explained has some internal
It seems to me that
if a referendum is confined to the approval or rejection of a
bill passed by Parliament, the bills supporters will be
more concerned to seek defensible legislation rather than cobble
together a bad bill and push it through willy-nilly. One of the
reasons why the Scotland Act and the Wales Act were
not more strongly supported in the referendums was that they were
terrible pieces of legislation.(47)
De Gaulle went down
to defeat in the 1969 referendum partially because "the constitutional
experts of the Council of State described the bill as one of the
worst drafted ever to come before the council."(48)
Overall, the abrogative
referendum appears to be among the most successful and least disruptive
types of referendums. As experience in Italy and Switzerland shows, abrogative
referendums are normally unsuccessful, so they are seldom destabilizing.
Their effect on the principles of representative democracy is minimal,
since they only take place after the legislative process is complete.
Legislators cannot take refuge in abrogative referendums merely because
they do not wish to deal with a difficult issue. Nonetheless, such referendums
are an ultimate check by the electorate on the legislators. The mere possibility
of an abrogative referendum confers additional legitimacy on constitutional
amendments, since a highly unpopular amendment would doubtless be challenged.
or Consultative Referendums
A distinction is sometimes
made between plebiscites and consultative referendums, but it is a difficult
line to maintain. Arguably, a plebiscite approves or legitimizes an actual
government initiative, whereas a consultative referendum is purely advisory.
In fact, given the moral and political weight of a referendum of any sort,
plebiscites and consultative referendums tend to merge.
Referendums held to consult
the public are not legally binding, but they do tend to be politically
binding. The Quebec referendum of 1980 did not technically bind the Quebec
government, far less the federal government, but there was no question
as to its political and moral significance.
Because consultative referendums
gauge public opinion rather than legitimize a specific action, they can
leave the government considerable flexibility to respond. A consultative
referendum was held in Sweden in 1980 on whether the country should continue
to use nuclear power, and all parties declared they would abide by the
outcome. The results were indecisive but assisted in fashioning a compromise,
and the various parties were left with more flexibility than if the referendum
had been legally binding.
However, governments do
not always continue to feel themselves bound by a past referendum. In
1955, an overwhelming majority of Swedes rejected a proposal for driving
on the right-hand side of the road. Nonetheless, in 1963 the government
implemented right-hand driving without holding another referendum.
Arguably, the plebiscitary
referendum is a means to legitimate a government initiative or decision,
while the consultative referendum discovers what type of future government
action the public would prefer. However, the difference between the two
can be illusory:
referendum is a slippery device. It may remain genuinely advisory
if rarely used. If invoked often or in relation to issues which
polarize opinion (for example, adhesion to the EEC in the case
of Norway in 1972), its consultative status becomes illusory.
To defy its verdict would be to flout the most important basis
of legitimacy in contemporary democratic states, that of popular
E. Subject of Referendum
The constitutions of a number
of countries make provisions for referendums to be held when constitutional
amendments are proposed.
- In Australia, constitutional amendments
must be approved by referendum, receiving a majority of all votes cast
as well as a majority of the votes in a majority of the states (or four
out of six states).
- In Austria, significant constitutional
amendments must be approved by referendum if one-third of the National
Council or the Federal Council (the Upper House which represents the
"Lander" or provinces) request such a vote.
- In Denmark, constitutional amendments
must be approved by a simple majority of those voting in a referendum,
representing at least 40% of eligible voters.
- In France, constitutional amendments
must be confirmed by either a three-fifths majority of both Houses sitting
together or by a referendum.
- In Ireland, a bill amending the
constitution must be submitted to a referendum after passing both Houses
- In Italy, a referendum on a constitutional
amendment is required only if requested by one-fifth of the members
of either chamber, or by 500,000 voters or five regional councils, within
three months of the publication of the amendment.
- In Spain, a constitutional amendment
can be submitted to a referendum for ratification if one-tenth of the
members of either chamber so request within 15 days of the amendment
- In Switzerland, all alterations
of the constitution must be affirmed by a majority of citizens. In addition,
any amendment proposed by 50,000 citizens becomes the subject of a referendum
(unless Parliament responds proposing its own amendment, and the sponsors
withdraw their initiative). Constitutional changes must be approved
by a majority of those voting, and by a majority of cantons.
Gregory Mahler, discussing
the referendum procedures in the constitutional proposals of the federal
government in 1980, suggests that the three most instructive comparisons
for Canada are Australia, Switzerland and West Germany:
We can see, then,
that the proposed Canadian amending formula would have been quite
a bit different from these other procedures. The German case does
not require a referendum or subsequent approval by the states,
but the states are directly represented in the Bundesrat; the
approval of their representatives cannot be avoided. However,
an amendment could be passed over the objections of one or two
or three of the German States. The Australian Constitution does
not give the states an opportunity to approve or disapprove of
amendments, but significant popular majorities in a referendum
are required for their passage. The Swiss procedure represents
a midway point: popular approval for amendments is required via
a referendum and the states must approve any referendum put forth.(50)
Mahler goes on to note that
the Trudeau referendum proposal for constitutional amendments would have
significantly reduced the existing powers of the provinces. Specifically,
the federal government could have had an amendment approved by referendum,
even if it was opposed by all of the provinces; however, the reverse was
Where there is a
conflict over the allegiance of a territory, or over the proper
boundaries of a state, a referendum of plebiscite
seen as the best means of resolving the dispute. Indeed, it may
seem to be the only method through which the irreconcilable creed
of nationalism can be rendered compatible with popular governments.(51)
The first formal plebiscites
affecting sovereignty were held in the late eighteenth century to determine
if the papal territories of Avignon wished to be annexed by revolutionary
France. In the nineteenth century, referendums on self-determination played
a major role in the unification of Italy:
It is fair to say
that the modern state of Italy was built by a series of referendums
in which overwhelming majorities turned out to vote for the unification
of their country.(52)
Although none of the original
six members of the Common Market held referendums on its formation, the
potential "second round members" did: Ireland, the United Kingdom,
Denmark and, with negative results, Norway. One of the lessons of the
EEC referendums in the 1970s is that sovereignty referendums can be dangerously
The Norwegian Social
Democratic Party concurred in the holding of a referendum in the
belief that the Norwegian people would vote yes; instead, they
voted no. The anti-Europeans in the British Labour Party made
exactly the same mistake; the 1975 referendum tied Britain even
more securely to Europe. Finally, Pompidou held a referendum [to
approve the admission of Britain, Norway, Denmark and Ireland]
that he need not have held in order to increase his prestige;
instead, the outcome had the effect of diminishing it.(53)
The United Kingdom "devolution
referendum" of 1979 asked the citizens of Scotland and Wales if they
wanted the establishment of their own assemblies, as provided for in the
Scotland Act and Wales Act of 1978. This is discussed in
more detail below under the heading "Counting the Vote."
One of the deep-seated
objections to referendums is that the question put forward is
often far from the real issue. In the case of devolution, the
issue was whether there should be a breakup of the British State.
says it is not like that in Switzerland; the devolution referendum
is different from anything in the Swiss experience, because no
one in Switzerland had put forward a proposition that a canton
should separate from the Swiss federation. There are referendums
about all sorts of other things but never on the breakup of the
Swiss state. There are two entirely different kinds of issues:
constitutional issues, delicate and emotional, and general issues.
No one ever thought that there should be a referendum on whether
the state of Oklahoma should secede from the federal union.(54)
Whatever difficulties a
referendum may cause for questions of territoriality and sovereignty,
it may be preferable to the alternatives. The traditional political process,
based on adversarial parties, can be even more divisive than a referendum.
Moreover, of all issues, those affecting sovereignty would seem to require
the highest possible degree of legitimization.
As Benjamin Disraeli
noticed, there is no finality in politics, and least of all over
issues involving the volatile and sensitive emotions aroused by
ethnic nationalism. One should not expect, therefore, to discover
an instrument which can achieve finality in a democratic state.
When that point is understood, then the referendum becomes, to
paraphrase Winston Churchill, the worst possible instrument to
resolve territorial disputes expect for all others.(55)
3. Moral or Political Issues
Referendums on moral or
political issues tend to involve a deliberate transfer of decision-making:
been reluctant to settle issues on which they were themselves
divided; they have wanted to avoid responsibility for decisions
which would be unpopular with a significant section of the public.
Referendums have offered a way of passing the buck. The EEC referendums
in Norway and Britain, the Leopold III referendum in Belgium,
the divorce referendum in Italy, and the various prohibition referendums
in Scandinavia and Australasia exemplified this. So, in a different
way, did the military conscription referendums (Australia, 1916
and 1917; Canada, 1941; New Zealand, 1949).(56)
Often, moral issues such
as divorce, prohibition or abortion can cut across party lines and a referendum
becomes a means of avoiding parliamentary disruption. Similarly, referendums
can involve political problem-solving when an issue, such as EEC membership
in Britain, threatens to disrupt party unity.
4. Bill C-9, the Canada
Referendum Act (1978)
Despite the traditional
reluctance of Canadas federal government to hold referendums, Bill
C-9, the Canada Referendum Act, was introduced in 1978. This was soon
after the Quebec legislature had passed the enabling legislation under
which the 1980 provincial referendum was held, and was presumably intended
to allow the federal government to hold its own referendum, on its own
question, if the necessity arose.
The main provisions of the
Canada Referendum Bill proposed in 1978 were:
- referendums could only be held on constitutional
- referendums would be advisory or consultative
and not have the direct force of law;
- questions would provide a yes-no choice;
- referendums could be held in one or more
- referendums would be initiated by a government
resolution in the House of Commons proposing a particular question.
Debate would be for a maximum period of 40 hours; referendums could
be held only on questions approved by the House of Commons and the Senate;
- writs of referendum could only be issued
within 45 days of Parliaments approving the resolution to hold
a referendum; the official campaign period would be 47 days;
- all federal and provincial parties or
other groups intending to spend more than $5,000 during the official
campaign period would be required to register; registration could be
at any time from the tabling of the resolution to the seventh day before
- these registered parties or "registered
referendum committees" could have a constituency representative
with rights similar to candidates for the revision of voting lists and
the scrutiny of the vote.
F. Regulating the Referendum Process
On the whole, existing electoral
law provides for the compilation of voter registers, the appointment of
returning officers, the establishment and manning of polling stations,
and the rules for secrecy of the ballot. While it is sometimes suggested
that age restrictions should be relaxed for a referendum, this is not
normally done. On the other hand, there may be a reason for giving a referendum
vote to some classes of the electorate who, for reasons ranging from the
need for absolute neutrality (judges) to a legal disability (prisoners),
are denied the vote in a general election.
Some problems that arise
with referendums are quite distinct from those in ordinary elections and
largely have to do with identifying the various interest groups so that
funding, media and scrutineering criteria can be fairly applied.
1. Grouping the Interests
Generally, the most difficult
issue with regulating the referendum is defining the recognized groups
for purposes of applying general financial and media criteria:
The purpose of umbrella
arrangements is to ensure fair play between the two sides in terms
of money and of media access. If there is to be public subsidy
of referendum campaigns, it is necessary to define who is entitled
to receive it. If there is to be a limit on expenditure so that
the richer side does not buy its way to victory, it is necessary
to define who may spend money and be made accountable. If booklets
presenting the yes and no cases are to be distributed by the authorities,
it is necessary to define who is to prepare these statements.
If the broadcast media are to offer balanced time, it is convenient
to have some formal definition of who the representatives of the
balanced arguments are.(57)
The British referendum on
the EEC had a number of unique features, many of which related to the
recognition of umbrella groups representing each point of view. A subsidy
of £125,000 was made to each of the umbrella organizations, since it was
evident that the pro-Europeans had greater resources than did those in
opposition. Moreover, Cabinet solidarity was relaxed for the three months
of the referendum; 16 members of the Cabinet campaigned for EEC membership
while seven campaigned against.
The use of umbrella groups,
initiated by the United Kingdom referendum of 1975, was adopted by Quebec,
as were many other aspects of the British referendum. In fact, the government
of Quebec was surprisingly laudatory about the British experience in a
1977 paper, "Consulting the People of Quebec," issued by the
Minster of State for Electoral and Parliamentary Reform:
It will be noted
that the provisions which have been retained, though owing something
to many countries with strong traditions of democracy, spring
above all from the experience of Great Britain in 1975, when she
held a referendum on whether to keep her ties with the European
Common Market. The parliamentary system, the long-standing democratic
tradition, and deep-rooted sense of fair play are British concepts
which have all been absorbed into Quebecs own political
tradition, and the referendum mechanisms which Great Britain built
on these concepts seem to the Government of Quebec to be an invaluable
guide in improving our own institutions.(58)
The Quebec Referendum
Act provided that the members of the National Assembly could register
with the Chief Electoral Officer the option they favoured within seven
days of the adoption of the question or bill containing a question. Those
in favour of each option then set up provisional committees. If, after
seven days, no member of the National Assembly had registered in favour
of an option, the Chief Electoral Officer could then invite between three
and 20 electors to set up a provisional committee.
The Canada Referendum Bill,
on the other hand, would have required all groups spending more than $5,000
in referendum expenses to register with the Chief Electoral Officer, but
would not have limited the number of groups that could register.
The reasons given by the
Quebec government for adopting the umbrella group approach were: to give
equal treatment to each option under electoral practices that limited
maximum expenditures; and to avoid the artificial situation of placing
political parties in charge of an issue that might not break down along
party lines. The equal treatment issue involved financial aid from the
state and limits on external funding as well as spending.
Notwithstanding the accepted
legitimacy of umbrella groupings, Quebecs legislation provoked some
criticism because, although the intent was to prevent distortion by wealthy
was to place the argument almost exclusively in the hands of the
provinces two main parties. People who wanted to urge a
yes or no vote for reasons not approved by their side of the campaign
seemed liable to be largely silenced.
When it was tested
in 1980, the Quebec law worked more smoothly and proved less draconian
than many had feared. There were no serious quarrels within the
umbrella organizations though it is arguable that the Liberals
used their position to consolidate their complete preeminence
over the other small parties as the opposition to the Parti Quebecois.
Other bodies managed to get a voice in the referendum by institutional
advertising and by conferences, as well as by speeches in the
federal parliament and other newsworthy activities. The press
and its correspondence columns provided a forum for all sorts
2. Financing and Media
Once the umbrella interest
legislation is in place, the main issues remaining are the extent of government
contributions to the groups, reporting requirements and limitations on
campaign contributions, ceilings on campaign expenditures, guaranteed
access to the media (primarily television), possible publication of position
papers at government expense, and the length of the campaign.
A decision has to be made
on whether there should be public disclosure of contributions and expenditures.
Since referendums often involve a highly emotional issue, the arguments
for and against disclosure differ somewhat from those in general elections.
It has been suggested that the "chilling effect" of disclosure
may be greater in a referendum than in an election and several countries,
notably Denmark and Norway, have rejected disclosure and reporting requirements
on precisely these grounds.(60)
A compromise may be to set the level of contributions that must be reported
at a high enough level to keep reporting and enforcement burdens to a
Another generally contentious
issue is whether there should be a ceiling on expenditures. On the one
hand, expenditure ceilings keep costs within manageable limits, ensure
that referendums cannot be "bought" by the richest side, and
presumably increase public confidence in the result. On the other hand,
ceilings that are set too low can prevent a truly effective information
campaign. Moreover, expenditures ceilings are more difficult to enforce
in a single issue campaign, when it is difficult to draw the line between
campaign advertising and "lifestyle advertising." If, for example,
Canada held a referendum on whether to ban smoking entirely, would a national
advertising campaign by the Cancer Society on lung cancer be included
in the expenditure ceiling?
Two related issues are whether
there should be restrictions on contributions from organizations with
an interest in the outcome of the referendum, and whether there should
be a ceiling on contributions from any one source. Finally, there is the
question of a "floor" for campaign costs, or the amount that
should be contributed by government to ensure that all sides are able
to run an effective information campaign.
G. Counting the Vote
The criteria for a successful
result in a referendum can vary considerably:
The decision may
be by simple majority of those voting or there may be some
more stringent requirement, for example, two-thirds of those voting
(Gambia), 50 per cent of the qualified electorate (West Germany),
45 per cent of the qualified electorate (Denmark until 1953),
40 per cent [of the qualified electorate] (the Scottish and Welsh
referendums of 1979), or 50 per cent of those voting in a majority
of component states or cantons (Australia and Switzerland). In
the vast majority of cases, a simple majority has provided the
verdict, although as King Leopold III of Belgium found in 1950,
a 57 per cent vote is not enough to give acceptance and legitimacy
to a constitutional head of state.(61)
The turnout in a referendum
can also be of critical significance. In the case of the Newfoundland
referendum of 1948, the United Kingdom made it clear that it would regard
any majority, however small, as binding. On the other hand, in 1972, President
Pompidou attempted to capitalize on General de Gaulles creative
use of referendums by calling for the approval of entry into the European
Community by Great Britain, Ireland, Norway and Denmark. Although almost
70% of the voters approved, two-fifths of the electorate stayed home and
did not vote at all. This was the highest abstention rate in any French
national election since the war. By holding an unnecessary referendum
in the hope of enhancing his prestige, President Pompidou diminished it
Where the results of a referendum
are binding, either in law or by political agreement, the question arises
as to whether a proposal should require the consent of a certain percentage
of the entire electorate as well as a majority of those actually voting.
The example most cited is the Scottish devolution referendum of 1979.
In 1978, the Labour government introduced bills calling for devolution
of some powers to new assemblies in Scotland and Wales, if approved by
the voters in referendums held in those areas but not in England itself.
A rebellion by backbenchers in early 1978 forced an amendment that "if
in the opinion of the secretary of state less than 40 per cent of the
Scots or Welsh entitled to vote voted for the act in question, the secretary
would be required to lay a repeal order before Parliament." The election
was held on 1 March 1979, and turnout became critical. There was
no difficulty in Wales, which rejected devolution by 80% of voters and
47% of the eligible electorate, but the Scottish result was less clear:
Per Cent of
Per Cent of
Did not vote
The government tried to
delay but narrowly lost a vote of confidence on 28 March 1979. The
experience seems to have dampened British enthusiasm for referendums,
particularly since some commentators suggest that it would now be politically
impossible to hold a referendum in Britain without incorporating the 40%
Denmark now requires that
40% of all eligible voters approve a constitutional amendment. Referendums
on non-constitutional bills, however, work the other way around; to be
defeated, a majority of the votes cast must be in the negative, and these
must represent at least 30% of eligible voters.
Quebec considered this issue
when drafting its referendum bill, but decided that "since referendums
are used for consulting the public, it would be pointless to include in
the law special provisions requiring a certain majority vote or rate of
Another mechanism for dealing
with the problem of low turnouts is to provide for compulsory voting.
Voting has been compulsory in Australia since 1924. Although turnouts
dramatically improved, the effect on the outcome of the subsequent referendums
Only half the enrolled
electorate voted in the referendums of 1906 and 1911, although
six in ten voted in 1910, and more than seven in ten in 1913 and
1919. It is hard to believe that the increase to 91 per cent which
occurred in 1926 had no effect at all on the outcome of the vote,
for the most plausible a priori reasoning suggests
that the dragooning of the uninterested and ignorant to the polls
would have increased the number of those who like to vote no.
There have been more successes in referendums since 1924, however,
and there has continued to be a large number of near misses. No
finding can be returned.(63)
Italy has semi-compulsory
voting and a great many other countries deal with the problem by having
referendums coincide with national elections, when political interest
is highest. This also holds down the costs of the referendum, and causes
the least additional interference with the business of government. However,
political passions tend to run higher at election time, and the referendum
can become confused with other issues.
The 1950 Belgium referendum
(referred to above at fn. 61) was a consultative plebiscite to determine
whether or not Leopold III should be restored to the throne. The problem
was not one of a total majority; it was that Leopold III had a majority
in the Flemish half of Belgium but only a minority in the French half.
In such circumstances, the referendum results did not provide the answer,
and Leopold III decided to abdicate.
A similar situation could
have arisen in the Quebec referendum of 1980 if the results had been more
evenly divided. Before the referendum, René Lévesque expressed his hope
that the referendum proposal would not be narrowly defeated: "
figure around the 45-50 per cent mark obviously signifies that the majority
of francophones voted yes
It would mean that a francophone majority
had clearly expressed a yes but that they had been blocked
by a majority." Even with a 60-40% rejection of the proposal, he
did not feel the situation was entirely clear: "To this day, no one
knows if our two-fifths vote for the oui represented 49 or
51 per cent of French Quebec."(64)
Referendum results can differ
dramatically according to geographical location and social background,
even in comparatively cohesive societies. In the tightly fought Newfoundland
referendum, which approved Confederation by a slim majority of 52 to 48%,
geographic patterns were obvious:
Government vote was concentrated mainly in the Avalon Peninsula;
outside the Peninsula, every district but one voted for union.
The division seems to have been partly on denominational lines,
for the population of the Avalon Peninsula was strongly Roman
Catholic, and the Roman Catholic Archdiocese had taken a recognizably
The above situations highlight
the difficult question of how votes should be counted in a referendum.
It has been suggested that "it was absolutely critical for the Belgium
referendum that the results were available at a local level as well as
for Belgium as a whole, because they demonstrated that one-half wanted
Leopold III and the other half did not."(66) The issue, however, is not a simple one.
Britain, for example, has
always counted and recorded votes in larger units than most other democratic
countries, but in the 1975 EEC referendum the practice was carried even
further so that no member of Parliament would be embarrassed by an evident
discrepancy between his own views and those of his voters. Originally,
the intent was to have all votes counted in London and announce only the
national vote, largely because of concerns that a different result in
Scotland, Wales or Northern Ireland could produce serious political difficulties.
This idea was eventually abandoned for both administrative and political
reasons, and votes were recorded by county rather than constituency.
The Quebec government noted
the problem when preparing its own referendum legislation:
In an election,
the votes are first counted in each polling station, and then
pooled to give a total for the electoral district. This system
could obviously be retained for referendums. It should be noted,
however, that there is a risk that members may find themselves
opposed to their constituents views. This problem could
be avoided if the example of Great Britain were followed, and
the results from each polling station combined on a regional level,
which would take in more than one district, or even on a Quebec-wide
level. The government is prepared to accept any one of these three
Sometimes the problem with
a geographic or social division is not the way the votes are counted but
a minoritys refusal to participate. For example, the "border
poll" of 1973 asked the people of Northern Ireland whether or not
they wanted to remain part of the United Kingdom; 98% of those who voted
said they did. The results of the referendum drew mixed reviews, however,
since it was obvious that many Catholics had refused to participate.
(1) For a list of national
referendums, see "Appendix A Nationwide Referendums," in David Butler
and Austin Ranney, eds., Referendums: A Comparative Study of Practice
and Theory, American Enterprise Institute for Public Policy Research,
Washington, 1978, p. 227-237.
The referendum procedures for a number of countries are described in Habib
Massouds "A Survey of the Referendum Processes in Various Countries,"
Library of Parliament, 1986; therefore, only the relevant provisions are
described in the body of this paper.
A list of referendums and plebiscites held in Canada can be found in J.
Patrick Boyer, Lawmaking by the People: Referendums and Plebiscites
in Canada, Butterworths, Toronto, 1982, p. 39-41.
Thomas Foley, in "Reflections on Referendums," The Referendum
Device, A Conference sponsored by the American Institute for Public
Policy Research and the Hansard Society for Parliamentary Governments,
Washington, 1981, Austin Ranney, ed., 1981, p. 10.
David Butler, "The World Experience," The Referendum Device
(1981), p. 75.
Ronald Butt, in "Reflections on Referendums" (1981), p. 12.
Robin Day, in "Reflections on Referendums" (1981), p. 9.
Thomas Foley, "in "Reflections on Referendums" (1981),
David Butler, "United Kingdom," in Referendums (1978),
"The miscalculations behind the defeats in France in 1969 and Norway
in 1972 ended the rule of the men who proposed the referendums. In Denmark,
in 1969, the proposal that was defeated was later carried when put forward
more tactfully in a referendum in 1971. The Swedish defeat in 1955 was
met by the government acting unilaterally in defiance of the referendum
decision" (Butler, "The World Experience" (1981), p. 74
Butler and Ranney, in Referendums (1978), p. 8.
Anthony King, in "Reflections on Referendums" (1981), p. 14.
Globe and Mail (Toronto), 7 September 1983, p. 11.
Ibid., 26 June 1986, p. A14.
Day, in "Reflections on Referendums" (1981), p. 9.
Boyer (1982), p. 60.
Philip Goodhand, in "Reflections on Referendums" (1981), p. 2.
Vincent Wright, "France," in Referendums (1978), p. 150.
Canadian Unity Information Office, "Understanding Referenda: Six
Histories," Ottawa, 1978, p. 25.
Ibid., p. 31.
Sten Sparre Nilson, "Scandinavia," in Referendums (1978),
Michael Steed, in "Reflections on Referendums" (1981), p. 8.
Ontario, Quebec, two Atlantic provinces having at least 50% of Atlantic
population, and two of the Western provinces having at least 50% of the
René Lévesque, My Quebec, Methuca Publications, Agincourt, 1979,
p. 101 and 109.
Wright (1978), p. 153-4.
Don Butler, "Trudeau Urges Referendum Right in Constitution,"
Ottawa Citizen, 12 September 1980.
Quebec, Consulting the People of Quebec, 1977, p. 10.
Understanding Referenda (1978), p. 10.
Ibid., p. 29.
Nilson (1978), p. 171-2.
Ibid., p. 172.
Wright (1978), p. 155.
Don Aitkin, "Australia," Referendums (1978), p. 131.
Understanding Referenda (1978), p. 35.
Don Aitkin (1978), p. 131.
David Butler, "Discussion," Referendum Device (1981),
Patrick Boyer (1982), p. 12; Butler and Ranney (1978), p. 4.
There is also disagreement as to whether more than one referendum should
be termed a "referenda" or "referendums." Butler and
Ranney (1978) consulted the editor of the Oxford English Dictionary,
who answered that referenda meant a plurality of things or issues
to be referred rather than a plurality of votes: "By preferring Referendums
as your title, you have the angels of Rome and of the O.E.D. on your side"
(p. 4-5, fn. 2).
Chief Electoral Officer of Quebec, Quebec, 1980, p. 6.
Minister of State for Federal-Provincial Relations, "Canada Referendum
Bill: An Explanation," 1978, p. 5.
Matthew Garfield, "Referendums and Plebiscites in Canada: Letting
the People Choose," 14 Hearsay 29-31 (1989), p. 29.
Edward McWhinney, Constitution-Making, University of Toronto Press,
Toronto, 1981, p. 39.
Jurg Steiner, in "Reflections on Referendums" (1981), p. 6.
Jean-François Aubert, "Switzerland," Referendums (1978), p. 45.
Ibid., p. 66.
Consulting the People of Quebec (1977), p. 9. The problems
with holding a binding referendum under the present constitution are explored
more fully in Jacques Rousseau, "Notes on Changes to the Constitution
and Legislation That Would Need to be Enacted to Allow a Referendum,"
Library of Parliament (1986).
Vernon Bogdenor, in "Reflections on Referendums" (1981), p. 6.
Wright (1978), p. 156.
Nevil Johnson, "Types of Referendums," The Referendum Device
(1981), p. 21.
Gregory Mahler, New Dimensions of Canadian Federalism: Canada in a
Comparative Perspective, Associated University Presses, London and
Toronto, 1987, p. 73.
Vernon Bogdanor, "Referendums and Separatism II," The Referendum
Device (1981), p. 143.
Philip Goodhart, "Referendums and Separatism I," The Referendum
Device (1981), p. 139.
Anthony King, "Referendums and the European Community," The
Referendum Device (1981), p. 118-9.
Tom Dalyell, in "Reflections on Referendums" (1981), p. 17.
Bogdanor (1981), p. 158.
Butler and Ranney (1978), p. 18.
The Referendum Device (1981), Appendix, p. 182.
Quebec, Consulting the People of Quebec (1977), p. 7.
The Referendum Device (1981), Appendix, p. 183.
Austin Ranney, "Regulating the Referendum," The Referendum
Device (1981), p. 92.
Butler, "The World Experience" (1981), p. 75-76.
Consulting the People of Quebec (1977), p. 9.
Aitkin (1978), p. 131-2.
My Quebec (1979); Memoirs, McClelland and Stewart, Toronto,
1986, p. 309.
Understanding Referenda (1978), p. 12.
Butler, "Discussion," The Referendum Device (1981), p. 82.
Consulting the People of Quebec (1977), p. 21.