|The Swiss Federal Assembly (Photo: parliament.ch)|
Switzerland is one of those modern democracies that likes to use referenda frequently. I'm not the biggest fan of referenda as democratic instruments, but if we're going to use them we could learn a few things from the Swiss model.
Switzerland's electorate can vote in referenda up to four times annually - and to think we complain about referendum fatigue! Indeed, Switzerland has witnessed over 550 referenda since 1848. They have rather complicated arrangements but essentially the Swiss model used two types of referenda in order to have an ongoing conversation between government and electorate on legislative and constitutional issues. These are legislative referenda, which are based on laws passed by Federal Assembly (parliament), and constitutional referenda which relate to proposed amendments to the constitution.
Both of these can be instigated by ordinary citizens, requiring the proposal gain in excess of 100,000 signatures to go forward, but cannot be used to create new legislation - only to consult on either existing or proposed law. Consequently, referenda are often used by Federal Assembly to effectively enter into dialogue with the electorate on various issues. Referenda are not used as a "once in a generation" opportunity to decide a question once and for all, but as a means of confirming approval for government plans or agreeing to revisit existing laws. For the Swiss, referenda are about accountability through conversation.
One such referendum has been the centre of an interesting news story, as a court has decided the result must be voided.
The referendum in question was from February 2016 and focused on the relatively unexciting issue of taxation for married couples. The opposition CVP (Christian Democratic Party of Switzerland) challenged existing legislation, claiming that married people were unfairly penalised. Their proposal to change this existing legislation was narrowly defeated by 51% to 49%. But that is not the end of the story - because it was later discovered that the federal government's official statistics in relation to the number of married couples affected were shown to be incorrect. Indeed, the government conceded that it's figure of 80,000 couples was wrong and that the true number of people affected was over five times that estimate.
The federal government's admission and willingness to accept responsibility is somewhat refreshing given the current political climate in the UK. So too is its intention to "propose additional measures to ensure the quality of preparation for decisions made by citizens". But most striking is that a court has been able to render the entire exercise void on the basis of one piece of mistaken information. No-one has claimed that the information was deliberately falsified, simply that the estimate was later proved incorrect. There has been a legal recognition that there is no value in a vote that is based on misinformation.
Contrast that with the farcical situation in the UK - in which a similarly narrow but far more controversial vote (which saw campaigning based on what the UK Statistics Authority claimed was "a clear misuse of official statistics") is being - even now - cited as the expressed and sovereign "will of the people". There have inevitably been questions asked as to why the UK doesn't follow Switzerland's example and overturn the result - but the answer is obvious.
It's the inescapable fact that their democracy is superior to ours. Legally speaking, there would be nothing to overturn.
The problem with the UK is that we sell our referenda as "deciding an issue for a generation" while never actually giving them any legal or constitutional status. Switzerland, on the other hand, not only gives its votes such status, it also understands what referenda are - and what they are not. It understands that referenda are based on conversations between legislature and electorate that themselves must be based on trust. It also views referenda as a means through which government and electorate can enter into a dialogue in regards to specific legislation or detailed proposals that it wishes to enact. (If the electorate rejects the proposal, there is nothing to prevent the federal government tweaking the detail of its proposal and again requesting public approval). As a result, Swiss referenda can be legally annulled whereas ours, having no more legal standing than an opinion poll, cannot.
Crucially, to my mind, the Swiss model means that in this unusual case the conversation simply continues. The judgement today has not created a political or constitutional crisis. It has simply recognised that a mistake was made and that the referendum result therefore cannot be accepted as a reliable indicator of informed public opinion. I suspect the vote will now be re-run.
We could learn a great deal from Switzerland - or other mature democracies, such as Ireland, who use referenda frequently and for whom failing to convince the electorate at the first time of asking isn't something to be feared, but an opportunity to revisit the detail of what is being proposed. Such mature democracies would never ask a vague, binary question without putting forward a coherent proposal for what would happen in the eventuality of the government's preferred outcome being defeated. Indeed, under Swiss law the Brexit referendum question would not even have been allowed to have been asked: it would have required a detailed proposal for leaving to be put to the voters.
There has been much talk on social media about today's development, especially in relation to the flawed Brexit referendum. I wouldn't read so much into it - it's simply a case of a more developed democracy than our own recognising the need to revisit a question that hasn't adequately been answered. But it does tell us one thing: the 2016 EU referendum was a prime example of how not to do democracy. Where is the accountability in advisory referenda, overseen by a toothless Electoral Commission, whose outcomes can be neither upheld nor challenged through legal channels?
If we're going to use referenda in the future, we would be well-advised to consider the tried and tested models from elsewhere. At the very least, a shift towards a more accountable system and the use of referenda to cultivate a democratic culture of dialogue rather than divisiveness would be welcome.
I think we've reached the stage where talk of political reform has to go beyond the usual issues of votes at 16, the House of Lords and electoral systems. For better or for worse referenda have become central to our democracy and, if they are not to further undermine it, our democratic systems have to embrace this reality. To say the status quo is unsatisfactory is a gross understatement.
What chance a codified written constitution?