Binding referenda at the local level
by Caroline Taube
This article deals with a set of legal questions related to legally binding referenda at the local (municipal) level. The county level, or regional level that may come instead of the county level in Norway, is not examined in this article. However, many considerations regarding the local level will be relevant also at the county level. Consultative referenda are not dealt with at all in the text.
After some short remarks on the terminology, a presentation is made of regulations, practical experiences and discussions on possible reforms in Denmark, Finland and Sweden. Presently, the respective Cabinets do not wish to introduce legally binding referenda in any of these countries. Next, an overview is presented of the background and some particularities of direct democracy in California and Switzerland. Among advocates of direct democracy, it is rather common in the Norwegian debate to refer to these countries. But the actual value of such comparisons is rather limited as the Norwegian system of government is firmly based on representative democracy. For this reason, the overview serves mainly as a way to achieve a better knowledge of the different opportunities and problems that should be taken into account when introducing referenda as a regular component of the democratic process.
The section on constitutional aspects departs from the notion �local government� and its meaning within the Norwegian system of representative democracy. Contrary to most other constitutions in Europe, the Constitution of Norway lacks a provision on local government. But as far as a degree of local autonomy exists in practice, this should constitute an argument for permitting binding referenda at the local level as an alternative method of decision-making as provided by law. Thus, �autonomy� primarily concerns the population in the area rather than the elected, representative political body as such. The recently tabled proposals of constitutional amendments are framed accordingly.
In the main part of the text, a number of various legal questions related to the possible introduction of a system of binding local referenda are examined. The possibility of extending the circle of voters is discussed as to include also holders of land within a particular local area. Hence these landholders might participate in local referenda on issues of their immediate concern (such as tax on property or questions related to the use of land).
When it comes to various categories of decisions at the local level, an examination is made of their respective legal nature and whether they might be suitable for referenda. It is underlined that the most suitable decisions are so called �political projects�. However, it is problematic that political projects, while having a general character, at the same time may encompass single decisions that concern an individual [enkeltvedtak], and/or may have the character of regulations that include normative rules of a general character [forskrift]. These two categories, and in particular single decisions, do not seem suitable for referenda as certain procedural guarantees ought to be fulfilled in relation to individuals. Such guarantees include special requirements when it comes to the preparation of a particular issue at stake [saksbehandling], a written and reasoned explanation for the decision [begrunnelse], and the way a decision is formulated when considering the possibility of a referendum. Among other kinds of decisions, also some decisions on financial issues as well as decisions on some particular taxes might be suitable to referendum under certain conditions.
In the sketch of a bill presented at the end of the text, it is suggested that a general clause is included in the Local Government Act [kommuneloven]. It states that the decision-making power which normally is exercised by a representative body also may be granted directly to the people. Moreover, particular provisions are suggested regarding the relationship with the Administrative Act [forvaltningsloven].
Two ways of initiating referendum are suggested. First, there is a compulsory referendum upon popular initiative where the stipulated number of necessary signatures is relatively high. Second, there is a facultative referendum which a minority of the municipal representative body may demand in order to confirm or reject a decision taken by that body. In both situations there is a limitation in negative terms of which issues may not be subject to referendum. And in both cases it is suggested that the referendum issue must be reviewed as to its legality before a referendum can take place. Furthermore, a rule on quorum is suggested in order to validate the outcome of referenda. In case a referendum concerns a single decision, a special provision is suggested for limiting the possibility of lodging complaints over the outcome of the referendum.
In addition to these general provisions in the Local Government Act, the introduction of provisions into special legislation on specific issues may also be considered. Such suggestions are not presented here, however, but only two rough sketches of possible additions to the Property Tax Act [lov om eigedomsskatt til kommunane] and the Construction, Planning and Use of Land Act [plan- og bygningsloven].