This book is, quite simply, essential reading for any supporter of Third Way and indeed for any person interested in the principle and practice of direct democracy. In his book Professor Walker defines three varieties of Direct Legislation — the initiative, the referendum, and the recall.
The initiative is defined as “a procedure that allows a prescribed number of voters to compel the holding of a binding poll on whether a proposed law of their own choosing should be adopted, or whether a particular law already in force should be repealed”.
One of the many merits of this book is the way in which, having defined what seems to be an idealistic goal, the writer documents where it is already working in practice! In the case of the initiative this includes, Austria, Italy, The Swiss Cantons and 23 US States (and the District of Columbia).
The legislative referendum “allows a specified number of voters (usually between 3 and 5 per cent) to petition for a referendum concerning a bill that has passed through parliament in the normal way but has not yet taken effect. The effect of a valid petition is that the statute will not come into force until the voters have had the opportunity to approve or reject it in a referendum. If the majority vote against it, the measure is repealed and the parliament may not introduce a similar measure for a specified period.”
39 US States have a version of this system, and 24 enable a specified number of voters to require one. The Swiss not only have this but also have the right to vote on the ratification of certain international treaties!
The recall is defined as “the power of the people to petition for the holding of an election on the recall, or removal, of a public official.” This exists in thirteen US States, for State Officials.
The history of how direct legislation developed is quite fascinating. The roots of the Swiss system can be traced back to the Germanic folkmoot and the Landsgemeinden — a general assembly of all male citizens to settle laws. This survived in Switzerland to influence Rousseau and through him the French revolutionaries who wrote the Constitution of August 1793, which contained a clause for citizen-initiated referendums. Sadly, at least in this respect, it never came into effect. After 1830 referendums became common in Switzerland, and were extended in 1874 and 1921.
In America the Constitution was submitted to the people for approval by Massachusetts in 1778, while in 1898 South Dakota became the first State to allow direct initiative. Between 1898 and 1918, seventeen States adopted this procedure.
Britain, alas, has not thus far been at the forefront of the development of direct democracy. As Professor Walker points out, “Britain has favoured representative institutions rather than direct democracy and, as we have seen, had never held a national referendum until 1975.”
Britain has traditionally favoured a system where once elected the ‘representatives’ exercise their own judgement. The only sanction the people can exercise if they feel that their views are being ignored is to vote for another candidate who will operate under the same system, at the next election. Professor Walker is rightly critical of such a system. He points out that the views of the majority might not be respected. He argues that the ‘representatives’ may not know the views of the electorate in the first instance: they may be in contact with only an unrepresentative sample. He quotes approvingly the point made by A.N. Allott, that the feedback through elections is both generalised and diffused. The Professor considers whether the wishes of Parliament can differ from the people in the long run. His answer is that:–
There are many instances of such divergence. They can happen, for example, when both parties are agreed on a particular policy. This occurred in Great Britain in 1970, when Conservatives, Labour and Liberal were all agreed that Britain should enter the Common Market. This meant that there was no way in which a voter in the 1970 General Election could cast a meaningful vote on this meaningful issue….
In fact we in Britain find ourselves in this position quite regularly:– on the question of Capital Punishment, on the Maastricht Treaty, and on Immigration, to give just a few examples.
The Professor sums up the perversion of the representative system thus:–
The weakness of the feedback mechanism, the strength of party discipline, the decline of parliamentary debate, the size of modern electorates, governmental tampering with electoral boundaries, problems of physical distance in large countries such as Australia, the deliberate insulation of policy making from popular influence, the size and complexity of modern government, all have weakened the accountability of parliament to the electorate.
One aspect of the consequences of ‘representative democracy’ that the Professor does not in my opinion consider in enough detail is the disillusionment that voters feel in the current system. According to a recent “Eurobarometer” poll (EB 39 – Spring 1993), 32 per cent in the UK are dis-satisfied with our ‘democracy’, whilst 15 per cent went so far as to say that they are not at all satisfied.
Professor Walker considers the impact of single-issue groups on representative democracies. He does not, however, consider that the rise in support for such groups is another indication of a disillusionment with party-package politics.
BENEFITS OF DIRECT LEGISLATION
Professor Walker sees the first benefit of direct legislation as being a further check in a system of checks and balances:–
Direct legislation is not intended to replace representative assemblies, not has it had that effect in any country where it has been adopted. Its purpose is to serve as a check on forces that tend to make representative assemblies misrepresentative.
I think that this is a sensible approach. Some political groups have advanced models of direct democracy which seem to assume that what people want is constant participation in politics. As someone involved in politics I can say that even I do not want to spend all my time pondering political decisions! I believe that what most people want is a right of veto over measures they feel particularly strongly about, a right to push through a measure they really want, and a right to sack incompetent, unrepresentative or corrupt officials. In short, they want the right to initiative, referendum and recall.
I would explicitly reject models of reform which rely upon a system of delegates, which I regard as fundamentally undemocratic.
Professor Walker also believes that direct legislation increases the legitimacy of the law:–
In a democracy, the only possible source of legitimacy is the will of the sovereign people. As the most direct way of ascertaining the will of the people, initiative and referendum have great advantages in this respect.
Professor Walker goes on to consider at some length the arguments used to deny direct legislation. This section is particularly useful as it provides the supporter of direct legislation with counter arguments to the most common misconceptions. He considers objections falling under seven main headings:–
Initiative and Referendum would undermine the existing system of Government.
The voters are not competent to judge particular legislative proposals, and they would support populist measures.
Initiative and referendum would install a “tyranny of the majority”.
Money and Media.
Cost and Inconvenience.
Bad Drafting and Inflexibility.
Initiative and Referendum would “simply not work” in this country (or State as the case may be).
Professor Walker answers these objections most ably. His main tactic is to show how, in various areas, the system is working and has not in practice failed in any of the ways in which the objectors predict.
Later chapters in his book consider whether direct legislation is Conservative or Radical. Dealt with are the structure and regulation of a direct legislation system; the recall; and the philosophical outlook underlying direct legislation — a belief in the common man.
I do believe this book provides a basis for a complete restructuring of politics in the British Isles. Whilst others talk of proportional representation (something which could work alongside direct legislation), our main focus and demand should be for people power through initiative, recall and referendum. At the Third Way Conference in January I shall propose that we adopt initiative and referendum as official party policy. If our folk had this power in the past, many of the disasters brought and wrought upon us by a corrupt, unrepresentative establishment would have been averted.
— Patrick Harrington
Initiative and Referendum : The People’s Law
by Geoffrey de Q. Walker.
The Centre for Independent Studies, 1987. ISBN 0 949769 24X