Will referenda make government more accountable.

• Author: Girling, James

James Girling is a lawyer with the Ontario Ministry of the Attorney General and currently on secondment as Legal Counsel to the Cabinet Office. From July 1997 to June 1998, he was Legal Adviser on the Ontario Referendum Project and, in that position, was responsible for the development of the legal policy and the draft legislation used in the Government's public consultation on provincial and municipal referenda in Spring of 1998. This article is based on his presentation to the 37th Canadian Regional Conference held in Toronto from July 18 - 24, 1998.

This article looks at arguments for and against the use of referenda as a way of keeping governments accountable. It concludes that there is no simple answer to the question as to whether referenda makes governments more accountable but outlines a number of factors that should be considered when deciding if a referendum is an appropriate public policy instrument.

In the British context, the first modern proposal for a national referendum came from the great constitutional expert, A.V. Dicey who in 1890 advanced the idea of a referendum on the Government's policy of Irish Home Rule. He believed that the majority of the voters would oppose it. No referendum was held, but as history has shown, the issue never really went away.

Dicey believed that a referendum could and should be used to make the Government more accountable, at least on this policy. To the extent that Dicey believed that constitutional change was at issue, he was the harbinger of the use to which referendums have most often been put in the Commonwealth, that is, to determine how the people are to be governed. Examples of constitutional referenda are legion:

* The 1975 referendum in the United Kingdom on whether or not the U.K. should remain in the Common Market.

* The 1979 referendums in Scotland and Wales on the devolution of legislative authority from Westminster, referendums which were repeated with different results within the last year.

* The 1992 referendum in Canada on proposed changes to the national constitution

* The 1995 referendum in Bermuda on independence from Britain, and

* The 1998 referendum in Ireland and Northern Ireland on the peace agreement

Even those referendums which are not strictly constitutional in nature tend to be on matters of high political, and often moral, emotional or psychological importance for the electorate, and hence for the elected.

In Canada, the only two other direct national votes on issues that did not strictly fall into the constitutional category, but were none the less issues considered to be of high significance in their day were the 1898 and 1942 votes on prohibition and conscription, respectively. They may not at first blush appear to non-Canadians to have the same degree of controversy as the 1981 Italian and 1993 Irish referendums on abortion, but in the greater scheme of things...