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Electoral Insight – International Electoral Co-operation

Electoral Insight – March 2006

Referendum Regulation: Canada and the United Kingdom as Models for Fair Practices

Matt Qvortrup*
Professor, Department of Economics and Public Policy, The Robert Gordon University, Aberdeen

Referendums are increasingly being used to resolve controversial political issues, not least in developing democracies. There is some international consensus on standards for what constitutes free and fair elections. The same is not, however, true for referendums. Based on a comparison of rules existing in the United Kingdom and Canada, this article outlines some of the main features of referendum regulation that could be considered a basis for developing a set of international standards for ensuring that referendum processes are free and fair. Footnote 1

Since the collapse of Communism in Eastern Europe and the intensified integration of Europe, there has been growing recognition of the need for public consent to legitimize momentous social and political change, beyond the legitimacy that can be conferred by an elected government. This has led to a marked increase in national referendums over the past decade and a half. The reasons for this trend, as could be expected, are manifold. But the most important one seems to be that "elected officials are seen as unresponsive and 'out of touch,' even in countries with long-established and well-functioning democracies." Footnote 2 This perception is possibly related to the decline in the number of voters who identify with the political parties.

Referendums contribute to decision making by expressing the undiluted will of the majority. True, not all referendums are binding, but in practice, it could be difficult for a government to go against the expressed will of the majority of citizens. The Swedish referendum on right-side driving in 1955 Footnote 3 is one example of such a case. In actual referendum campaigns, there have been claims of demagoguery, one-sided campaign spending, and government intervention, raising questions about the conduct of the referendum and whether its result genuinely reflects the public will. Referendum regulations have scarcely been dealt with in the scholarly literature. Footnote 4 As well, no specific set of standards that could be applied internationally has been suggested. This article seeks to remedy the lack. The general trend toward greater use of referendums in developing and newly democratized countries necessitates a set of standards for referendums. The criteria could include impartial administration, proclamation, adoption of the referendum question, wording of the referendum question, registration of referendum organizations, limits on expenditures and contributions, disclosure of expenses and contributions, fair access to media, and public access to information.

Regulations for referendums are relatively rare. Both Canada and the United Kingdom, however, have introduced detailed mechanisms to regulate referendums. By comparing referendum regulations in Canada and the United Kingdom, we intend to extract a set of standards that could be internationally applied to reflect the principles of fairness, transparency and access.

Impartial administration

A neutral electoral commission is considered necessary to prevent governments from interfering with the running of elections. The same criterion should apply to referendums. Canada has established a permanent non-partisan electoral body to administer referendums, as well as elections. In the United Kingdom, while the Electoral Commission does not have jurisdiction over conducting elections, it does have jurisdiction over administering referendums.

Officials count ballots in Sunderland on November 4, 2004, after voters in the United Kingdom's most recent referendum rejected establishing an elected assembly for the north-east region of England. The U.K.'s Electoral Commission was responsible for commenting on the intelligibility of the question, registering campaign organizations, monitoring spending limits and donations, and administering the balloting.

In Canada, at the federal, provincial and territorial levels, the chief electoral officer of the jurisdiction is responsible for the conduct of referendums. However, only at the federal level and in Quebec do the respective chief electoral officers have the authority to adapt the legislation pertaining to elections for the purposes of a referendum. In all other Canadian jurisdictions, the government concerned makes referendum regulations. Quebec is the only jurisdiction where a separate body, the Conseil du référendum, is established to hear any judicial proceeding relating to a referendum. At the federal level, the Commissioner of Canada Elections, who is appointed by the Chief Electoral Officer, ensures that the provisions of the legislation are complied with and enforced for referendums and elections alike.

In the United Kingdom – both in England and in the devolved areas of Scotland, Wales and Northern Ireland – the Electoral Commission has certain responsibilities at U.K.-wide, national and English regional referendums. Election offences must be referred to the Crown Prosecution Service in England and Wales, the Director of Public Prosecutions in Northern Ireland or the Crown Office in Scotland.

The proclamation

In Canada, referendums are usually proclaimed by the government of the jurisdiction concerned. However, in Quebec and Saskatchewan, the legislative assembly may direct that a referendum be held. In Saskatchewan, a referendum may also be initiated with a petition signed by 15% of electors. In the United Kingdom, a referendum is proclaimed by the government, which is then required to introduce a bill seeking parliamentary approval for the holding of the referendum. There are no provisions for citizen initiatives in the United Kingdom.

The referendum question

Most jurisdictions in Canada allow a referendum to be called on any issue of public concern. At the federal level, however, a referendum can only deal with a question relating to the Constitution of Canada. In Alberta and British Columbia, the legislation states explicitly that any amendment to the Constitution of Canada must be put to a separate provincial referendum.

In the United Kingdom, the referendum question is formulated by the Government of the day and usually laid out in the bill providing for the referendum, although it can be set out in secondary legislation later. There are no criteria in the United Kingdom as to which issues can be addressed by a referendum. The framework legislation (Political Parties, Elections and Referendums Act 2000) requires the Commission to comment on the intelligibility of the referendum question and to publish a statement of its views. This formula was applied recently in relation to the European Union (EU) bill providing for a referendum on the treaty establishing a constitution for the EU. While the government could legally ignore advice from the Electoral Commission, the consensus is that this would be politically impossible. The Commission publishes its advice before parliamentary debate commences.

This shows the question on the ballot in Quebec's 1995 sovereignty referendum. Subsequently, in 2000, Canada's Parliament passed the Clarity Act, which authorizes the House of Commons to determine the clarity of a referendum question on the secession of a province.

In Canada, most jurisdictions have not legislated a formal process for the adoption of the question. However, there are rules for the wording of questions at the federal level and in Quebec. The text of the question or questions for a federal referendum must be put forward in the House of Commons and approved by both the House of Commons and the Senate. In Quebec, the question must, likewise, be debated in the National Assembly, and debate on the wording of a proposed referendum question takes precedence over all other matters before the legislature.

Even if an option obtains a majority of the votes, the results of a referendum could be challenged if the wording of the question was not clear. It is for this reason that the Clarity Act was adopted in 2000 in Canada. The Act provides that if any referendum concerns the separation of a province, the federal government must determine that the question was clear and unambiguous before entering into secession negotiations with that province. The Act was passed subsequent to the complex wording of the 1995 Quebec sovereignty referendum question.

Referendums conducted in Canada are generally consultative in nature. Only in Alberta, British Columbia and Saskatchewan may the results of a referendum be binding. In Alberta and British Columbia, the results may be binding on the government if one option receives 50% + 1 of the votes cast. In Saskatchewan, one option must receive more than 60% of the votes cast and the participation rate must exceed 50% for the results of a referendum to be binding. In the United Kingdom, referendums can be either advisory or binding. There was a provision in the 1979 referendums on Scottish and Welsh devolution that these would only be passed if supported by more than 40% of the electorate. Both fell short of this figure (although a majority of the Scots voted for devolution). Since then, no provisions for supermajorities have been used. However, in the case of the November 4, 2004, referendum on a regional assembly in the North East of England, which was advisory, ministers said they would carefully consider whether to act on the result if the voter turnout was very low. Less than half (47.7%) of the electorate voted and the referendum question was rejected by almost 80% of those who cast ballots. Footnote 5

Recognition of referendum organizations

The first umbrella organizations were pioneered in the 1975 British referendum on continued membership in the European Economic Community (EEC) – the forerunner of the EU (the majority voted for continued membership). Currently, referendum campaigns involve "permitted participants" who must register with the Electoral Commission. The Commission can designate a permitted participant campaigning for a specific outcome in a referendum to act as the lead campaign organization for the outcome it supports. This is in accordance with the Political Parties, Elections and Referendums Act 2000.

Canada's 1992 federal referendum rejected changes to the Constitution of Canada. This pamphlet told groups supporting or opposed to the referendum question how to register as referendum committees, with the potential of obtaining free broadcasting time, and about the spending limits they must observe. There were 241 registered referendum committees.

Such a participant, known as a "designated organization," is allowed higher spending limits and can receive public monies to run its campaign. The Commission will only designate an organization if it can also do so for other organizations favouring each of the possible referendum outcomes. Individuals or groups, including political parties, are required to register with the Commission if they intend to spend more than £10,000 on referendum expenses. Footnote 6

In Canada, umbrella organizations exist only in Quebec. In this province, members of the National Assembly must register their choice of option with the province's chief electoral officer (the directeur général des élections du Québec) within five days of the National Assembly's adoption of the question, thereby forming the committees in support of each of the options. If none of the members of the Assembly come forward, the Chief Electoral Officer is entitled to invite up to 20 electors to register to form a committee. Further to the decision of the Supreme Court of Canada in Libman, private intervenors may now spend up to $1,000 in advertising during a provincial referendum, after obtaining the authorization of the directeur général des élections du Québec.

The federal level in Canada and the province of Ontario provide instead for the establishment of referendum committees. At the federal level, a person or group may apply for registration with the Chief Electoral Officer as a referendum committee at any time during the referendum period, but only a referendum committee may spend more than $5,000 to directly support or oppose a referendum question. In Ontario, any individual or group campaigning or advertising in favour of a particular option must apply for registration with the province's Chief Election Officer if the organization wishes to spend more than $1,000.

Limits on expenses and contributions

Canada's 1992 federal referendum was its first in 50 years, and Elections Canada mounted an extensive information program for electors. his pamphlet informed voters about the referendum process and how to ensure they were on the voters list.

A contentious issue is whether there should be a ceiling on expenditures. Some argue that expenditure ceilings keep costs within manageable limits, ensure that referendums cannot be "bought" by the richest side, and increase public confidence in the result. Others contend that ceilings prevent a truly effective information campaign.

Disparities in campaign spending raise concerns that one side prevails based on financial superiority, rather than as a result of genuine support.

This is not a conclusive debate. Many argue that the outcome of a referendum seems to be driven by other structural factors, such as the economy, the length of time the government has been in office, etc. Footnote 7 In recent years, some have cast doubt on the importance of money in ballot campaigns, though it has been reported that "negative" spending in many cases has been successful. Footnote 8 Still, restrictions on the use of money in ballot campaigns are fairly common.

In the run-up to the first Quebec referendum on sovereignty-association in 1980, the National Assembly passed the Quebec Referendum Act, restricting campaign expenditures, and mandating that two campaigns be established, each representing one side of the argument. The Act states, "The total of contributions to each national committee by the same elector in the same referendum shall not exceed the amount of $3,000" (section 91). A white paper issued by the Quebec Minister of State for Electoral and Parliamentary Reform in 1977 said that:

"[the regulations were inspired by] countries with strong traditions of democracy… above all by the experience of Great Britain in 1975… The parliamentary system, the long-standing democratic tradition, and a deep-rooted sense of fair play are British concepts, which have all been absorbed into Quebec's own political tradition, and the referendum mechanisms that Great Britain built on these concepts seem to the Government of Quebec to be an invaluable guide…" Footnote 9

At the federal level in Canada, there is no limit on the amount an individual or group may contribute to a referendum committee. Nevertheless, a committee is not permitted to spend more than $0.30 X the number of names on the preliminary lists of electors in the areas where the committee has indicated it will be active.

In Quebec, the National Assembly is obliged to give each referendum committee an equal subsidy for its campaign fund. All expenses related to the referendum must be paid out of this fund. Contributions may be made only to the fund, and no elector may contribute more than $3,000. Expenses must not exceed $1.00 per elector on the preliminary or revised lists, whichever is greater. Similar rules apply in Ontario, where no one may contribute more than $7,500 in total to campaign organizers who are promoting the same result in a referendum. Expenses for such campaign organizers are limited to $0.60 X the number of electors in the electoral district where the organizer is registered. Footnote 10

This system has been copied in the United Kingdom – explicitly citing Canada as the model. In 2000, the British Labour government enacted legislation based on the Quebec Act, namely the Political Parties, Elections and Referendums Act 2000 (PPERA). Due to its comprehensiveness, this Act is currently cited as a key reference point in debates about the regulation of referendums. Like the 1978 Quebec Referendum Act, PPERA introduces limits on campaign spending. The restrictions on campaign spending are as follows (sections 117 and 118):

Disclosure of expenses and contributions

In Canada, referendum committees must submit financial reports at the federal level, in Quebec and in Ontario. Reporting requirements similar to those for general elections have been adopted, including the disclosure of the name and address of any donor who contributes more than a specified amount. The report must be submitted within a stated deadline: 90 days after the referendum in Quebec, four months at the federal level and six months in Ontario.

In the United Kingdom, permitted participants must report to the Electoral Commission the referendum expenses they incurred during the campaign period and the donations they received. Reports must be submitted within three months of the referendum if the permitted participant incurred expenditures of £250,000 or less, or within six months of the referendum if more than £250,000 was spent. Permitted participants that spent more than £250,000 must submit a statement from an independent auditor with their reports.

Equal access to the media

While it is impossible to ensure complete fairness and parity in the quality of media exposure or prevent bias in the media, public broadcasters are generally expected to strike a balance of quantity (i.e. print space or air time) between the contending sides for referendum-related content. While simple allocation of broadcasting time is unlikely to produce total fairness, it is at least recognized that both sides of the argument must have the opportunity to present their case, i.e. have access to the media.

In Canada, at the federal level, each network is obliged to provide a total of three hours to all registered referendum committees that have requested free broadcasting time. The time is then allocated among the committees by the Broadcasting Arbitrator, who is appointed by the Chief Electoral Officer, taking into consideration the regional and national interests of the various committees and the different views on the referendum question (see the Referendum Act, section 21).

However, whereas rules regarding campaign spending were first pioneered in Canada, and then implemented in the United Kingdom, the reverse is true as far as broadcasting is concerned.

Equality of access was initiated in the first U.K.-wide referendum in 1975 (on whether the U.K. should remain a member of the EEC), when each side was allocated four 10-minute television spots. Footnote 11 In the 1979 referendums on Scottish and Welsh devolution, no similar provisions were introduced. Consequently, the Independent Broadcasting Authority decided to allocate broadcasting time to political parties (rather than to the two sides).

But this proved controversial, since three out of four parties favoured devolution, and the decision was successfully challenged. Footnote 12 In the U.K. referendums, the two designated umbrella organizations are allocated equal broadcasting time. Footnote 13

Public access to information

Alongside the opposition to public funding in support of a position, there is also a general acceptance of the need for funding to provide the public with neutral information about the issue and referendum process. However, restrictions must be made on this information and regulation is necessary – a task that typically falls to the electoral management body responsible for the conduct of referendums. In the United Kingdom and in Canada, the legislation explicitly provides some guarantees to ensure public access to information. For example:

At the 1992 federal referendum in Canada, Elections Canada provided voting information in 37 Aboriginal languages. Posters, audio tapes and booklets showing the referendum ballot and translations of the referendum question were widely distributed to Aboriginal communities. The booklets were also available at all polling stations across Canada for Aboriginal electors to consult.

Conclusion

Based on the regulations that have been introduced in Canada and the United Kingdom, it is possible to extract a set of standards that could potentially be applied internationally. For instance, we could argue that referendums are most likely to be free and fair when the following conditions are met.

As Jeremy Bentham stated: "The utility of this remedial process would depend entirely upon the way in which it was administered; yet the rejection of a means so salutary can only originate in culpable indifference, anxious to save itself the trouble of discovering expedients." Footnote 14

Notes

* The author gratefully acknowledges the significant contribution of Alain Pelletier, Assistant Director, Corporate and Parliamentary Research, Elections Canada, for his work in the research, writing and editing of this article.

Footnote 1 The authors wish to acknowledge support from Paul Degenstein, Laurence Morel, Lawrence LeDuc and Gary Sussman, and in particular the Referendums and Political Parties Branch (Department for Constitutional Affairs) of the United Kingdom and the U.K.'s Electoral Commission for comments on a previous draft.

Footnote 2 Lawrence LeDuc, "Referendums and Initiatives: The Politics of Direct Democracy," in Lawrence LeDuc, Richard G. Niemi and Pippa Norris, eds., Comparing Democracies 2: New Challenges in the Study of Elections and Voting, 2nd ed. (London: Sage, 2002), p. 70.

Footnote 3 Olof Ruin, "Sweden: The Referendum as an Instrument for Defusing Political Issues," in Pier Vincenzo Uleri and Michael Gallagher, eds., The Referendum Experience in Europe (Houndmills, Basingstoke, Hampshire: Macmillan, 1996), p. 179.

Footnote 4 Ben Seyd, "Regulating the Referendum," Representation Vol. 35, No. 4 (1998), pp. 191–199.

Footnote 5 For detailed information on the Canadian experience with referendums, including the questions asked, see Tim Mowrey and Alain Pelletier, "Referendums in Canada: A Comparative Overview," Electoral Insight Vol. 3, No. 1 (January 2001), pp. 18–22.

Footnote 6 More information on designated organizations and permitted participants is available at www.electoralcommission.org.uk/referendums/faqsreferendums.cfm.

Footnote 7 M. H. Qvortrup, "How to Lose a Referendum: The Danish Plebiscite on the Euro," The Political Quarterly Vol. 72, No. 2 (2001), pp. 190–196.

Footnote 8 Elisabeth Gerber, The Populist Paradox: Interest Group Influence and the Promise of Direct Legislation (Princeton: Princeton University Press, 1999).

Footnote 9 Quebec, Minister of State for Electoral and Parliamentary Reform, Consulting the People of Québec (Québec: Éditeur officiel du Québec, 1977), p. 7.

Footnote 10 Mowrey and Pelletier, "Referendums in Canada," p. 21.

Footnote 11 House of Commons Standard Note, Referendums: The New Rules, www.parliament.uk/commons/lib/Referendums.pdf.

Footnote 12 Wilson v. Independent Broadcasting Authority, 1979 SLT 279.

Footnote 13 The Funding of Political Parties in the United Kingdom, July 1999, Chapter 9: Media and Advertising, www.archive.official-documents.co.uk/ document/cm44/4413/4413.htm.

Footnote 14 Jeremy Bentham, The Theory of Legislation, C. K. Ogden, ed. (London: Kegan Paul, 1931), p. 107.


Note: 

The opinions expressed are those of the authors; they do not necessarily reflect those of the Chief Electoral Officer of Canada.