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Resolution 2251 (2019)
Updating guidelines to ensure fair referendums in Council of Europe member States
1. Experience drawn from referendum
practice – since the Code of Good Practice on Referendums (hereinafter
“the code”) was adopted in 2007 by the European Commission for Democracy
through Law (Venice Commission) upon a request from the Parliamentary
Assembly – calls today for the strengthening of the rules on conducting
referendums, the enhancing of compliance with this code by Council
of Europe member States and the sharing of good practice throughout
the continent.
2. In particular, recent referendums in some countries have raised
concerns about the process and/or the fairness of the outcome. Other
countries have explored innovations in referendum practice which
could be of benefit to policy makers in all member States. Moreover,
the growth of the internet, and especially social media, has fundamentally
changed the nature of political campaigning and of people’s expectations
regarding democracy.
3. The Assembly therefore welcomes the fact that a process for
updating the 2007 code has been initiated by the Venice Commission
and invites the latter to take into account, in the revised code,
the following general principles:
3.1. referendums
should be embedded in the process of representative democracy and
should not be used by the executive to override the wishes of parliament
or be intended to bypass normal checks and balances;
3.2. proposals put to a referendum should be as clear as possible
and subject to detailed prior scrutiny, including by parliament,
to ensure that they reflect voters’ concerns and express their wishes;
3.3. the campaign should ensure a balance between the different
sides and allow voters access to balanced and quality information
in order to be able to make an informed choice.
4. With regard to specific aspects of conducting referendums,
the Assembly invites the Venice Commission to consider including
in the revised code the following elements:
4.1. it should not be possible for the executive to call a
referendum on a constitutional proposal, except where the decision
to hold a referendum has already been endorsed by the legislature
or where the proposal that is put to a referendum has been passed
by the legislature;
4.2. in order to allow voters to make well-informed decisions
while casting their votes, it should not be possible to hold referendums
at the same time as other elections;
4.3. where possible, referendums should be post-legislative;
where this is not possible, a process should be set out requiring
two referendums if the first referendum does not allow voters to
choose between the options that are ultimately available;
4.4. to avoid the danger of low participation while maintaining
the principle that referendum results should not be subject to turnout
thresholds, referendums should, as far as possible, be called only
on subjects that are likely to attract significant public interest;
4.5. it should not be possible to put to referendum a proposal
which would run counter to Council of Europe membership conditions,
such as a proposal to reintroduce the death penalty;
4.6. questions requiring replies other than “Yes” or “No”,
including multi-option questions, should be allowed if they give
voters a clearer choice;
4.7. an impartial body should check all proposed referendum
questions to ensure that they are clear, comprehensible and unbiased.
Where a fixed format for referendum questions is used, this should
be reviewed periodically to ensure that it provides for a ballot
paper which fulfils these criteria;
4.8. in the case of citizen-initiated referendums, the number
of signatures required to trigger a referendum should be high enough
to ensure that the proposal has genuinely wide support; the development
of procedures whereby a citizens’ petition would not lead directly
to a referendum, but rather to a citizens’ assembly which would
recommend follow-up action, could be encouraged;
4.9. there should be sufficient time for all sides to develop
and express their points of view and for voters to hear the arguments
and form an opinion. While a considerably longer period of preparation
is desirable, particularly if the topic has not already been subject
to widespread public discussion, the absolute minimum time between
calling a referendum and polling day could be set at four weeks;
4.10. the prohibition for the authorities to use public funds
for campaigning purposes should last throughout the campaign period;
4.11. in the case of public funding, the principle of equality
between the sides should take precedence over that of proportional
distribution of resources;
4.12. the principle of transparency should apply both to the
sources of campaign funding and to how those funds are spent; spending
and/or donation limits should be encouraged and foreign donations prohibited;
4.13. new rules on the transparency of campaign materials should
be introduced, including clear labelling with the names of the producers
of all advertising; rigorous independent press regulation and impartial
fact-checking should be encouraged for the purpose of tackling misinformation;
4.14. the responsibility to provide official information should
be entrusted to an independent body, rather than the authorities;
information should include, as a minimum, the referendum question
and details of when and how to vote and, where possible, explanations
and analysis of the proposals;
4.15. sanctioning powers should cover all aspects of campaign
regulation, including breaches of the campaign finance rules; fines
should be commensurate with the scale of campaign funding.
5. The rise of digital media and the increasing convergence between
printed, broadcast and digital media, especially social media, calls
for regulation across all media sectors in relation to all electoral
processes. The Assembly notes that the Venice Commission is currently
working on these issues and hopes that relevant guidelines will
be developed for both referendums and elections.
6. Considering that compliance with the above-mentioned principles
is occasionally lacking in certain areas, the Assembly calls on
member States to ensure that:
6.1. all
fundamental aspects of referendums, as defined in the current code,
with particular emphasis on rules governing the franchise, are fixed
in legislation for referendums in general (rather than on an ad hoc
basis); such legislation should not be changed less than a year
before a referendum is held;
6.2. the body supervising the referendum is independent of
government and has powers to enforce the rules, including the power
to impose sanctions in case of breach;
6.3. public funds are not used by the authorities for campaigning
purposes throughout the campaign period;
6.4. optimal solutions are developed, in co-operation with
internet companies, with a view to designing repositories of online
political advertising.
7. The Assembly considers that the existence of an independent
body which would check any proposed referendum question, supervise
the conduct of the campaign, take all necessary measures to ensure
that it is properly conducted and possess the means to enforce its
decisions and sanction possible breaches, would be one of the most
efficient means to enhance member States’ compliance with referendum
rules. It therefore calls on the Venice Commission to consider recommending,
in the revised code, the creation of such bodies in Council of Europe
member States.
8. The Assembly underlines that promoting citizens’ participation
in democratic deliberation, both before and after a referendum is
called, can address voters’ lack of trust in and feeling of disconnection
from decision-making processes. Thus the Assembly, recalling also
its Resolution 1746 (2010) “Democracy
in Europe: crisis and perspectives”; and drawing from existing practice
in some member States:
8.1. encourages
all member States to explore opportunities for citizens’ deliberation
both prior to referendums and during the campaign, for instance
through citizens’ assemblies;
8.2. invites the Venice Commission to highlight, in the revised
code, the role citizens’ assemblies and other similar mechanisms
could play to ensure closer scrutiny of proposals before a referendum
is called and improve the quality of information and debate during
a referendum campaign.