Referendums: Constitution Committee Report
(13 years, 6 months ago)
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Lord Rennard
My Lords, the Select Committee was right to see significant drawbacks to the widespread use of referendums and to note that they have been used in the past for reasons of tactics rather than principle. There are good reasons why a referendum may sometimes be appropriate in a representative democracy, but there are also dangers to democracy from increasing the use of referendums. History teaches us that referendums can be used, as Clement Attlee famously observed, as,
“devices for demagogues and dictators”.
Even sincere attempts to use referendums for democratic reasons can fall foul of various problems to which elections may be less susceptible. Several witnesses to the Select Committee drew attention to the way in which the question on a referendum ballot paper is often not the question on which people actually vote. In 2003, a national newspaper attempted to conduct a referendum on the question of whether there should be a national referendum on the proposed constitution for Europe. Using newsagents as polling stations, it sought to give people their say on this issue. But evidence suggested that as many as 90 per cent of those who voted thought that the question had been about the single currency and not about the constitution at all.
The Select Committee report quotes Dr O’Malley of Dublin City University illustrating how in Ireland the first referendum on the Lisbon treaty became one on abortion and conscription rather than on the treaty. This was, as Professor David Butler described, a result of the disproportionate influence exercised by a single very rich individual who wanted to influence the outcome of that referendum. So referendums may not always be about handing power to the people, they may be about handing disproportionate power to certain wealthy groups and individuals.
More frequently, referendums can effectively become about support or opposition to the Government of the day. The timing of the 1997 referendums in Scotland and Wales, and the nature of those campaigns, suggested that they were as much about a referendum endorsing the change of Westminster government that had just taken place as the questions on the ballot paper about the future governance of Scotland and Wales. Elected Governments across the world are advised that if they wish to make changes that are endorsed by a referendum, they should generally do so before the so-called mid-term unpopularity kicks in, making it much harder to win such a poll, which can become a protest vote against the Government themselves.
When should a referendum be right in principle as opposed to a tactic to suit the party in power that proposes it? I think that the committee has produced a good list of the most obvious potential issues that may be considered of fundamental constitutional importance and could therefore be appropriate for a national referendum. The clearest case to be made for a referendum must be on the issue of how people elect their representatives. That is because the alternative to a referendum on this issue is that those representatives effectively choose for themselves the system by which they are elected. There is much we may learn from the experience of the referendum on electoral reform that is due next May.
The committee looked in particular at the issue of thresholds in referendums. But before we get to the referendum next May, there are attempts being made in the other place today to impose a threshold that 40 per cent of the electorate be required to endorse change before it can happen. If such a threshold had been adopted in the recent general election, requiring MPs to have the support of 40 per cent of their electorates, then only three out of the 650 Members of Parliament would have been declared elected. We do not have a minimum turnout threshold for electing MPs, MEPs, councillors or other representatives, so I cannot see the general justification for one in order to deem a referendum vote valid. The committee was therefore right, in my view, to recommend a general presumption against the use of voter turnout thresholds and super-majorities.
I cannot, however, agree with the committee’s conclusion about whether or not referendums can generally be held at the same time as other ballots, and nor do the Government. The issue of turnout, and therefore of legitimacy, may be linked to whether or not referendums can be held at the same time as other elections. It seems somewhat contradictory that some of those who make democratic legitimacy arguments in support of a minimum turnout threshold, in particular for referendums, also argue for the decoupling of referendums from other elections. All those of us who have been involved in elections know that it is hard enough to get people out to vote at any time without increasing the frequency with which they have to do so.
The argument against holding a referendum at the same time as other elections is based on the idea that people could not comprehend a referendum question that otherwise would be intelligible because they are also electing representatives on the same day. This defies the experience of many countries. It also defies past experience in this country, which noble Lords opposite may well remember; that of the referendum on creating a London Assembly and a mayor of London. That referendum coincided with the London borough elections in 1998, and we know that London voters had no difficulty dealing with these separate issues on the same day. I do not expect that we will ever be asking voters to deal with the series of questions and huge range of elections that voters in the United States often cope with.
There is also an argument about the cost of staging a referendum. The marginal costs of holding a referendum on the same day as other elections are but a small fraction of what the costs would be of a separate referendum, which are equivalent to the costs of a general election.
More fundamentally, one of the potential downsides of referendums identified by the committee is the problem of people treating the vote in a referendum as a vote on the Government of the day rather than as an issue of principle. This is actually ameliorated by holding referendums on the same day as other elections. People can use their elections to have their say on the Government of the day and who their representative should be, while at the same time using the referendum to decide an issue of principle. In a number of other countries, a referendum on future changes to the voting system has coincided with a general election held under the old system, thereby binding the hands of those elected under the old system to make any change required by the voter for future elections. That is a democratically healthy principle and one that I hope we may see in future.
Lord Pannick
My Lords, I want to focus on the Government’s written response to the committee’s report. The Minister, Mr Harper, said that the Government do not share the committee’s concern that referendums in the past have been used as a tactical device in an ad hoc manner. He assured noble Lords and the committee that the Government are committed to the use of referendums as a means of giving people a greater say in politics. The evidence which the committee heard—I declare an interest as a member—clearly established that Mr Harper is simply wrong in his analysis of the past and that the current proposals the Government are putting forward strongly suggest that Mr Harper’s hopes for the future are unlikely to be met.
As to the past, some of the most striking evidence we heard is summarised at paragraphs 37 and 38 of our report. The noble Lord, Lord Goodlad, has already mentioned the evidence of Professor David Butler, of Nuffield College, Oxford, that normally referendums happen only when the Government think they are going to win. It may be that the next referendum will happen only because the Government think that they are going to lose. Steve Richards, the chief political commentator at the Independent newspaper gave similar evidence. He emphasised that the referendum is a tool used by political leaders to suggest that they are giving away powers when in fact they have carefully controlled the circumstances to ensure that they attain the desired result.
None of this should take anyone by surprise. The referendum is a powerful political mechanism and politicians will use it in the way they use all other political mechanisms—to advance their own political agendas. Referendums in the past have simply not been used to give people a greater say in politics— Mr Harper’s aspiration. Indeed, if that had been the case, important social reforms such as the abolition of capital punishment, homosexual law reform and race relations law would have been prevented or at least severely delayed.
Of course, people must be encouraged to have their say on political questions, but decisions on such matters are for Parliament. Parliament has the task not merely of informing itself but also of leading public opinion where appropriate. Its task is not simply to identify what public opinion is and then to follow it.
If we confine our attention to constitutional issues, we see that it is simply not the case that the referendum has been used consistently in the past; it has been used wholly arbitrarily. Major constitutional change has occurred in this country without a referendum: the Parliament Acts of 1911 and 1949, the decision in 1966 to give the right of individual petition to the European Court of Human Rights, the Human Rights Act 1998 and the removal of almost all hereditary Peers from this House in 1999. The committee’s report is surely correct, therefore, in stating at paragraph 96 that the inconsistency in the use of the referendum in this country supports the view that the referendum is at heart,
“a tactical device rather than a matter of high constitutional principle”.
That is the past. As to Mr Harper’s hopes for the future use of the referendum as a means of giving people a greater say in politics, the evidence of this Government’s record so far does not suggest any move away from the tactical use of a referendum as, when and to the degree that it suits the Government. Mr Harper’s letter includes a list of the matters on which they are considering referendums. It does not include their plan to reform this House to introduce a wholly or mainly elected upper Chamber—the noble Baroness, Lady Jay of Paddington, referred to this matter in opening today’s debate. The question inevitably arises why, if the Government are so keen, as Mr Harper tells the committee and the House, on the referendum as a means of giving people a greater say on major constitutional reforms, the public are not to be given such a say on House of Lords reform.
The Government are proposing a referendum on the voting method for elections to the other place, but as your Lordships well know, the Parliamentary Voting System and Constituencies Bill will offer the public a choice only between the present first past the post system and the alternative vote method of election. Any objective exercise to identify the views of the public would include the choice of proportional representation as a means of electing the other place; indeed, it has long been the view of those on the Liberal Democrat Benches that such a system should be adopted.
I, like all your Lordships, have great admiration for the debating skills of the noble Lord, Lord McNally, as well as for all his other qualities, but I am doubtful that even he can persuade noble Lords today that the lack of any present intention to offer a referendum giving a wider choice of voting systems can be consistent with Mr Harper’s assertion that this Government deprecate the use of the referendum as a tactical device.
I hope that the Government will be slow to propose referendums in the future, even on constitutional issues. Complex issues of government are best decided by Parliament, taking full account of the views of all sections of society, of course. I am concerned, like the noble Lord, Lord Rennard, that referendums will inevitably be strongly influenced by the drafting of the question, the power of the press to influence thinking, the popularity of the Government when the referendum occurs and the ability of people to understand the issues that are being posed. The Electoral Commission’s recent report on the proposed referendum on the alternative vote revealed an alarming state of public ignorance on the subject—a matter to which the noble Lord, Lord Hart of Chilton, has already referred.
My point is not to encourage the Government to hold more referendums: it is that the committee was undoubtedly correct to conclude that a referendum is, always has been, and will remain, a political device that a Government will inevitably seek to manipulate to advance their own objectives. When the Government propose a referendum, we should lock the doors and make sure that the political burglar alarms are working.
Lord Foulkes of Cumnock
My Lords, like the noble Lord, Lord Pannick, I have the greatest respect for the debating skills of the noble Lord, Lord McNally, who is an old friend. I propose to put a few points to him to test them later in the debate. First, as one of the non-members of the committee, like the noble Lord, Lord Rennard, I add my sincere congratulations to the noble Baroness, Lady Jay, and to the members of the committee on a well considered and helpful report. I only wish that I could say the same about the Government's response to the report.
In particular, we in this House should be concerned at the apparent contempt in the Government's response to the report, and in the Bill being discussed today in the House of Commons, for the role of Parliament. The Government seem to be saying that as soon as they decide something, it will happen. What has happened to the phrase “subject to approval by Parliament”? We are told that it will be a five-year Parliament because the Deputy Prime Minister has decided that. He does not say that it is subject to the approval of Parliament, which it is.
Equally, with a referendum, whereas the Electoral Commission very cleverly and carefully says “the proposed referendum”, the Government call it the referendum that is due to take place, not which they hope will take place or is planned. The presumption is that because it has been decided by the Government it will automatically happen, without proper consideration by either House of Parliament, let alone both.
I take two points from the report. First, the committee recommends that,
“cross-party agreement should be sought as to the circumstances in which it is appropriate for referendums to be used”.
That is certainly not in the spirit of the Bill going through the other place. There does not seem to be any cross-party agreement there. The second point is that:
“We recommend that referendums should not be held on the same day as General Elections”.
Following that argument, I presume that that would apply to elections in Scotland, Wales and local government elections in England. I will concentrate on that. The Government's response to having a referendum on the same day as these elections is that it saves money. I have a better suggestion for saving money: do not have a referendum at all. That would save even more money, if that is a main constraint that concerns them.
The Government’s response is full of strange ideas. For example, I take the suggestion of local referendums on council tax increases. That is a populist notion; I do not know whether it comes from the Liberal Democrats or the Tories. It is probably from some old liberal tradition which still exists on the Benches opposite. But it begs lots of questions—and I shall give three. Why not a referendum on a council tax decrease, which has just as much effect in reducing services? That is not being suggested. Why not have referendums on other taxes? And how much will the referendum cost? Will it cost more than the tax increase that might take place? The suggestion begs so many questions that it is manifestly something put in without any great thought at all.
As the noble Lord, Lord Pannick, said, the referendum on the alternative vote offers only that one choice—the simple choice between first past the post and the alternative vote. I make no bones about it. Like many of my colleagues on this side and a great many opposite, I am in favour of first past the post. For the lower House, which produces the Government and from which the Government are decided, it normally results in stable government—although we have an exception at the moment. If we had an elected second Chamber, although that is a separate debate, there would be an argument for electing it by some form of proportional representation so that the revising House was of a different composition, in order to look at the legislation coming from the Government in the lower House. But why are we having this referendum on the alternative vote? Most of us on our side do not want it, most of the Tories do not want it and the Liberal Democrats do not really want it. They want the single transferable vote—proper PR. So why have we got it? The only thing that I can deduce is that it is a Trojan horse, the thin end of the wedge. Once 150 years of tradition in this country of electing the Commons by first past the post is thrown aside and we move to AV and there are problems with it, people could say, “Well, if we’ve done it once, let’s do it again—let’s try the single transferable vote, or the system we have in Scotland”. Once you open the Pandora’s box—I hope noble Lords will excuse me mixing metaphors—you do not know where it will stop.
Finally, I turn to the question of having a referendum on the same day as the elections in Scotland, Wales and local government elections in England. I shall take Scotland as an example and point out to noble Lords the reality of the confusion that it will cause. Of course, the electorate is not stupid—no one is suggesting that. Each person will go in and do their best to understand the system and the whole election campaign. Let us imagine, however, that the elections and a referendum are taking place in Scotland on 5 May next year. People will go in to find two ballot papers for the Scottish Parliament elections—one for first past the post, on which they have to put an X opposite the name of the person whom they want to be their constituency representative. They might see Sarah Boyack in Edinburgh Central—a little propaganda getting in here—and they put an X down next to her name. Then they have another list in which they have to put the numbers one to five against the party that they want to support for the list candidates. So that is quite a complicated thing already. In the run-up to that, there will have been campaigns for the constituency and the list, and people will need to understand that—and it takes some understanding, I assure you. Then they would have a third ballot paper on which the referendum vote would be cast. All that is quite a complicated exercise already. Then we come to the real fly in the ointment: the voting on the referendum will be carried out on a different franchise from that for the Scottish Parliament, as the noble Lord, Lord McNally, said in a reply to me only recently. The referendum will be held on the parliamentary franchise and the vote for the Scottish Parliament will be on the local government franchise, so people will come in and they will be told, “Oh no, you can’t vote that way”, or “Wait a minute, we’ll have to check”—you can imagine the confusion which will take place. I hope that I have illustrated enough and I look forward to the explanation from the noble Lord, Lord McNally, of how this will be dealt with, particularly with the two different franchises.
We will also have two different campaigns running at the same time. The noble Lord, Lord Rennard, says that people will of course understand the different campaigns and vote differently on them, but he also said earlier that Governments carefully choose the times of referendums to get particular outcomes—they want to have it early in this period—so he has already admitted that contamination takes place; in this case, there will be cross-contamination. A referendum might be voted through or voted down not because of the value of the arguments on it as such, but because of people’s other concerns about the Scottish Parliament, the Welsh Assembly or, indeed, what is happening here in Westminster in relation to the coalition Government. It is very stupid and I hope that the Government will think again.
When the Bill comes through the other place, there is an amendment to change the date which, if it does not get through there, will come here. I hope that the coalition Government will seriously consider separating the dates. I made it clear that I do not want the referendum at all and will vote against it if we have that opportunity, but if we are to have it—if that is the will of Parliament, ultimately—then I plead with the Government not to have it on the same day.
Finally, on the gerrymandering Bill—a better title for it than the long title that it has—which is now going through its committee stage in the House of Commons, perhaps I might tell my own Front Bench, and I choose my words carefully here, that if the Government continue to ride roughshod over Parliament and to propose things such as having no appeals or hearings for boundary changes, and if they bring things in which are entirely against the spirit of our democracy, we in opposition should respond in like terms.
The Lord Bishop of Chester
My Lords, the committee's thorough and skilful report is most welcome, not only for the contribution which it offers to the potential use of referendums but for the way in which it implicitly opens up questions about the effective operation of our democracy, which so obviously lie in the background. For my part, while I welcome the general tenor of the report, with its caution about the use of referendums and its various health warnings along the way, here and there I think that the report is too cautions. I may be able to offer the Minister a little more pastoral care than he has received so far in the debate.
Why do I think that the report is a bit too cautions? Our aim is good government through a strong, representative democracy. One easy conclusion would be that if this aim is already achieved, there is little need for the use of referendums unless major constitutional change is proposed. Even there, there are issues to debate. This, in large measure, seems to be the underlying logic of the committee's report, and there is much to commend that, but there are two ways in which the logic needs some qualification.
The first picks up some comments made by the noble Lord, Lord Foulkes, although not quite in the context in which he offered them, concerning the current balance in our constitutional arrangements between the Government, or Executive, and Parliament. It has been widely remarked in recent years that the balance has become an imbalance, with the Executive using the powers at their command to dominate Parliament. It is several decades since Lord Hailsham coined the well-known phrase “elective dictatorship” in his Dimbleby lecture to point up the dangers, but since he issued that warning the dangers have got even greater. Perhaps the advent of coalition government has not entirely helped, not least in this House where a whipped vote of the coalition partners will be much harder to defeat than has previously been the case.
The problem of an over-dominant Executive is widely before us, and it is not conducive to the flourishing of representative democracy. The natural solution, of course, would be to seek to rebalance the relationship between the Government and Parliament, but that is more easily said than done because of the pressures that the Government are under and because so much power has in practice already been transferred to the Executive.
Perhaps a somewhat greater use of referendums would be a useful tool of empowerment to the people of this country, a way of embodying and demonstrating that the power which Governments wield is exercised on behalf of all our citizens. We have to face the widespread cynicism about politics and politicians today, as we have been sharply reminded in the past two years. We should not underestimate what needs to be done in order to counteract this, and a somewhat wider use of referendums on a consultative basis may have a place in the appropriate strategy. This would not be a panacea, as the noble Lord, Lord Hart, suggested, but it may have a place in a consultative way.
If referendums were purely consultative, that would take the sting out of a great deal of what the noble Lord, Lord Pannick, said in his powerful speech. The decision could rest with Parliament, be it about capital punishment or constitutional change, but there is a real advantage in empowering people and involving them in decisions. If we say that there is public ignorance, that is not a reason for not consulting people; it is a reason for increasing public knowledge, and properly conducted referendums could have a place in achieving that.
I shall point to a couple of examples, one where a referendum was used and one where it was not but it might have been and, I believe, should have been. Imagine for a moment that there had not been a referendum in the north-east in 2004 about regional devolution. This was a highly political subject, the government of the day at least appearing to be strongly in favour of regional devolution. It is easy to think that the government of the day would have convinced themselves of the rightness of their proposals and gone ahead, but a clear result in the referendum effectively prevented that happening—rightly so, I believe. In saying this, I am aware that any referendum will be a rough and ready tool, and the outcome will need careful interpretation. Proper questions were raised about aspects of the process and campaign in the north-east. Nevertheless, I think it is widely accepted that the wisdom of holding that consultative referendum is undeniable.
Let us look at this from another point of view in, perhaps, a more controversial area where referendums have not been held, and the committee draws attention to this—that is, over successive European treaties. I tread somewhat warily into this territory, but the lack of any referendum on at least one of the treaties since 1975 has had a bad effect on how politics is viewed in this country. There is a widespread sense—not only among London taxi drivers, although they certainly exhibit it—that too much power has been transferred without proper scrutiny and democratic consent to the European Union by successive Governments forcing the relevant legislation through by heavily whipped votes. I say this as a supporter of the European Union who is largely grateful for our membership, but the absence of any recognised test and mandate of the people of our country as a whole may yet return to haunt our political life, not least since the major parties have broadly taken the same European policies to the electorate in successive election campaigns.
I move to a more local example from my own neck of the woods in Cheshire. Several years ago, without a local referendum, there was a consultation—I put inverted commas around the word in my notes—about the future shape of local government in the county of Cheshire. There were three options, broadly: a continuance of the previous arrangements in some form of dual administration by a county council and six district councils; a single Cheshire-wide unitary; or two new unitaries, east and west Cheshire. The great weight of the responses to the consultation favoured either a revised status quo or a single unitary. However, a political decision was made by the Minister to impose two new unitaries, which seemed to most people in my community to have little local support. The noble Lord, Lord Phillips, who is not now in his place, said earlier that public confidence in consultation is very low; I am not surprised that that can be said.
I pay tribute to those who are making the new system of east and west Cheshire work, but there remains the widespread feeling that the community of Cheshire was subject to an executive decision in London that did not take sufficient account of what the people of Cheshire judged was best. The very fact that the new unitaries are called east Cheshire and west Cheshire rather indicates that there is an underlying social and geographical reality of Cheshire to which both belong. The exercise has been much more expensive than a single unitary would have been. The people of Cheshire as a whole deserved the chance to be consulted before a decision was taken by the Minister, just as the people of the north-east were consulted about regional devolution.
Perhaps it is implied in the coalition agreement that this should have happened, because a referendum is required for the introduction of an elected mayor. Should it not also be required for any major change in local constitutional arrangements? Amid my general support for the government response, I look forward to the Minister’s response on that specific point. It is relevant not just to elected mayors.
Lord O'Neill of Clackmannan
Can the right reverend Prelate, in a national, rather than a local government, context, take account of the fact that referenda tend to be judgments as much on the proposer as on the proposition? If the proposer is not very popular at any time, it affords the electorate an opportunity to have a go at them. That is probably the reason—more so than any other—why devolution in the north-east was rejected. In 2004 the status and popularity of the Labour Government in an area where they were normally held in high regard were somewhat lower than we would otherwise have expected them to be.
The Lord Bishop of Chester
That point was raised earlier in the debate. Of course there will be a range of factors that come into play. I lived and worked in the north-east for nearly 10 years. I was not surprised that when the people were consulted they gave the response that they did. I think that most people would now think that it would have been wrong to introduce regional government. However, to address the point more directly, the very fact that referendums are held so sporadically, in such an ad hoc way, has contributed to the fact that they can be misused or interpreted as a judgment on the proposer. That is why a slightly more organised protocol for the use of referendums, particularly, perhaps, for local issues but occasionally also for national issues, would be beneficial to our democracy. However, there is no panacea and there are dangers with whatever approach one takes.
I conclude with a more general point about the exercise of political power. The notion seems to have grown up that strong government necessarily means powerful government, with the government of the day being perceived to be in charge of events. Yes, that is understandable. However, the intolerable pressures of the modern media can push a Government too far. Is it not one of the implications of the idea of a big society, as opposed to a big state or big government, that a strong Government can display their strength by sharing their power with the people most affected by a decision? That, I believe, lies behind the proposed localism Bill. It is also the underlying reason why we should be prepared to welcome a rather wider use of consultative referendums than has been the case in recent times, and as the committee’s report recommends.
Lord Brooke of Sutton Mandeville
My Lords, it is a pleasure to follow the right reverend Prelate the Bishop of Chester. We owe the existence of the Lords spiritual as a valuable element in your Lordships’ House to their medieval predecessors’ reluctance to serve in a court to try their fellow Peers. It is good to know that referendums can honourably enter the purview of the Lords spiritual.
On a personal note, I mourn the recent death of Lord Bingham. His maiden speech in your Lordships' House as Lord Chief Justice was on the then constitutional settlement. On principle he never spoke in this Chamber as a Law Lord, save to give judgments; but one had hoped that in retirement he might have come back to speak in this Chamber, not least on constitutional subjects—so he is already missed.
I congratulate the noble Baroness, Lady Jay of Paddington, not only on securing the chairmanship of the Constitution Committee of your Lordships’ House but on having celebrated it so admirably today. I congratulate her, too, on the compliment paid her by the Electoral Commission at lunchtime today in providing briefing in room 13 on the Parliamentary Voting System and Constituencies Bill and its referendum implications, which I like to think was a deliberate act.
I have myself never been a member of the Constitution Committee, so what qualifications do I have to speak? Perhaps I should declare one interest in that the local polls in Wales on the Sunday opening of pubs during the 1960s, referred to in paragraph 2 of this report, was the product of a suggestion by my noble and leaned friend Lord Howe of Aberavon—as he then was not—and was implemented by my late noble kinsman as Minister for Welsh Affairs. I have a miniature qualification in having lived in Switzerland for a year 50 years ago, and thus breathed the referendum air.
I spoke in Marlow on the yes platform on the 1975 referendum and was told engagingly afterwards by my fellow speaker, a Wing Commander Martin, that I had developed arguments he believed no one else in the hall had ever thought of before. Wing Commander Martin was, I think, the first British officer into Sarawak after the Japanese surrender and remarked to me that he thought the people of Sarawak might well have voted for the return of the Brookes as white rajas if the opportunity had been afforded them.
I lived through the 1977-79 debates on Welsh and Scottish devolution as a participant opposition Back-Bencher, and 20 years later in the 1997-1999 period I felt unease about the referendum arrangements regarding Scotland, Wales, the Greater London Authority and the Belfast agreement, which seemed to be made up as the Government went along and were regulated and finally corralled only by the Political Parties, Elections and Referendums Act 2000 after all four of these referendums had been done and dusted. The more’s the pity given the international praise that that Act has since received. Perhaps that Act may let us draw a line under the past.
In relation to the Belfast agreement referendum, the Prime Minister—whose name had already been deployed in the Welsh referendum by a plane drawing a banner across south Wales, saying, “Vote yes, vote Blair”—was pressed to campaign on the Belfast agreement referendum by Labour MPs who had been campaigning for the yes vote, which they feared they might lose without his participation, which gave rise to one pledge or promise of his which he, of course, was later unable to fulfil. That brings me, as a new reader, to the excellent report that we are debating today. The gallimaufry of quotations assembled from relevant academics is a rich quarry even if it occasions the same discipline one has to observe in the splendid, comparatively recent biography of Georgiana, Duchess of Devonshire, of constantly needing to look up the dramatis personae in the index. The cut and thrust of observations and apothegms is worthy of a Platonic dialogue, though they are, of course, to some degree taken out of context, and it leads to suspense in the process to see on which side of the argument the committee will eventually come down, which it summarises by assessing the balance of evidence. Out of context, surprise sometimes occurs.
On the issue of choice of subjects for referendums, I have on a prior occasion cited one of my late noble kinsman’s constituents, a very competent photographer named Miss Compton Collier. She lived in a flat in West Hampstead, possessed neither radio nor television and never read newspapers. She told her bank manager that it was his obligation to let her know if anything of real significance occurred. He prudently inquired what her standards of “real significance” were. She said that that was a very easy question to answer: they were the death of the sovereign or the outbreak of war. That procedure has much to recommend it, but as a resolution for the choice of subjects by one’s bank manager, it is as unpredictable and impenetrable a method as the Duckworth Lewis one is to the average spectator at a limited-overs cricket match.
Knowing, however, that the noble Lord, Lord Wills, will have both the right and opportunity of reply, I shall follow the principle of getting your retaliation in first which is pursued by the British Lions on rugby football tours, and say that, on his point on the composition of the House of Lords being irrelevant because the people of this country have had decades to consider this change—a view which the coalition seems to share, as other speakers have said—as the right reverend Prelate said, the same might likewise have been said about regional government in the north-east, when the noble Lord, Lord Prescott, was driven back to that far-off fastness because he believed that he knew the answer for sure, as in the example given by Professor David Butler to the committee that a referendum on 4 November some years back proved otherwise and earned the experiment the title of 4/11 throughout Whitehall. If I had a preference for elections to your Lordships' House, I would not bet my own house on such a result if a national referendum on the composition of your Lordships' House were held.
My own interpretation of the overall tenor of this report is that the referendum is a device not without worth but that it should not be abused by overuse. That seems to me a very British conclusion to which I have no difficulty subscribing.
Lord Liddle
My Lords, I also welcome this excellent report by my noble friend Lady Jay’s committee. I should like to add my thoughts on referenda as they apply to the European Union.
I suppose that, so far in my life, I have been involved in one real referendum and two failed referenda. I took part in the 1975 referendum on the European Union. I was one of the organisers of “Oxford says yes to Europe” and greatly enjoyed the campaign. In my period working as a Europe adviser to Tony Blair when he was Prime Minister, I was also involved in debates and discussions on two referenda on the European Union, neither of which actually happened—very regrettably, a referendum on whether we should join the euro; and, very thankfully, a possible referendum on the constitutional treaty.
In 1975, I had come to the view that a referendum was a good thing because it would settle the Europe issue for all time. Well, it did not. I think that that should be a warning to all referendum enthusiasts—it does not settle issues for all time. When I started working for Tony Blair I allowed myself to be persuaded again that a referendum on the euro would be a good thing. It was the arguments of Hugo Young that I found most persuasive. He said that this would be an existential choice for Britain, about Britain’s future direction in the world, and it was right that we should have a referendum on it. As we know now, that issue became bogged down and blocked in questions of whether the economic circumstances were right for Britain to join, and whether the five economic tests were fulfilled. In retrospect my view is that if a referendum were to have been held, it should have taken place in 1998 or 1999, on the principle of whether Britain should join the euro. Then the decision on when we did it, according to when the economic circumstances were right, should have been left to the Chancellor and to the Cabinet. That was what the late Lord Jenkins of Hillhead urged on the Prime Minister at the time, and in retrospect he was right.
The constitutional treaty referendum was announced by the Prime Minister to the House of Commons in April 2004. I could never see a case for it because the constitutional treaty, despite its portentous title, was nothing more than a classic amending treaty to the basic treaties of the European Union. In its policy content it was a lot less significant in its effects than the Single European Act. I remember a meeting at which Mr Blair expressed these views very forcefully to the then Foreign Secretary, saying, “Jack, are you saying that we should have a referendum on this treaty? That would involve running up and down the streets, telling people to come out and vote in favour of a double-hatted Foreign Minister. Do you think that that is what people are going to respond to?”.
When the referendum was proposed in 2004, it was done purely for tactical reasons, not for reasons of principle. The tactical reasons were, first, a misjudgment about how this House would vote on the treaty and a feeling that a referendum clause would be added; and secondly, a fear that the issue would be very damaging to Labour in the European elections that were coming up. Those are not good reasons for having referenda, and I was extremely pleased that when Gordon Brown became Prime Minister, he saw no case for a referendum on the Lisbon treaty and that, once he had made the decision and explained it clearly, the passage of the Bill through the House was a complete damp squib. I remember the then Minister for Europe, Mr Jim Murphy, telling me that he had had hardly any letters about it in his postbag.
In the recess, the coalition Government announced in a Written Ministerial Statement by David Lidington on 13 September that legislation would be introduced this Session for multiple referenda on matters European, on the basic test of whether a transfer of powers would take place. According to the Statement, not just new treaties but so-called ratchet clauses which amount to the transfer of an area of competence or power from the UK to the EU will be subjected to a referendum. Well, I find it deeply objectionable. First—this is a point about referenda—the Government's language is all about transfer of powers. That is not how I see it. We are talking about a pooling of sovereignty to give us more power to act over things that are important to us. Technically we may be surrendering sovereignty to Brussels, but we are gaining real power to act. That raises real questions about how the questions would be posed in such referenda on so-called transfers of powers, because that would confuse people.
Secondly, if the Bill had been in place in 1997, we would have had referenda on every amending treaty that has passed since—not just on the treaty of Lisbon but on those of Nice and Amsterdam. That makes three referenda in all. Technically—the noble Lord, Lord Hannay, may correct me—we would have had a fourth, because in 2004 it was decided under a passerelle clause to make immigration and asylum a matter of qualified majority voting, which certainly would have passed the Government's test of what would have required a referendum. So many referenda in such a short period would be ridiculous and I do not think that people would know what they were all about, but having referenda on so-called passerelle clauses is an added great confusion. Who will decide which passerelles represent a fundamental so-called transfer of power? That is very unclear. We will probably have the Supreme Court deciding which matters should be subject to referenda. Therefore, I see this as an undesirable development, and frankly I am amazed that my good friend the noble Lord, Lord McNally, and the Liberal Democrats have agreed to these proposals being brought forward by the coalition Government. I find it amazing that what was the most pro-European party in Britain has agreed to them.
I do not rule out all referenda. If we in Britain are to have a referendum on Europe, let us have it on big and simple choices. Let us have a referendum on whether we are going to be fully committed members of the European Union or whether we are going to pull out. It seems that we could have a referendum on that. However, do not let us kid ourselves that, except on these very big issues, referenda are a way of dealing with the problem of legitimacy in our democracy. We do that by restoring trust in our parliamentary institutions and by having politicians and political parties that are prepared to argue and lead—not to go for the cop-out of referenda, which I believe just encourage the backstairs politics of tactical manoeuvre.
Baroness Quin
My Lords, I, too, am pleased to participate in this debate, particularly as this was the last report in which I was involved as a member of the Constitution Committee, and it is a subject that I was particularly keen to see the committee examine. I am glad to say that I strongly support the report and its recommendations.
I take this opportunity to congratulate my noble friend Lady Jay on her appointment as chair of the committee. I add my own words of thanks to the outgoing chairman, the noble Lord, Lord Goodlad, who also addressed us this afternoon.
I hope that this debate is timely. It is good to see that, unlike the debates on many committee reports on the Floor of the House which are often dominated by committee members, the debate on this one has also attracted a large number of Members who were not involved in the committee’s deliberations but have obviously been very interested in the committee’s work on this subject.
I was certainly concerned about aspects of the Government’s policy on referendums, and that concern was triggered when the then leader of the Opposition, now the Prime Minister, said on 10 June 2009 in another place:
“Is it not time to allow people the opportunity to present a proposition and have it voted on in a local referendum … Should we not give them the right to hold a referendum on massive council tax rises?—[Official Report, Commons, 10/6/09; col. 800.]
That seemed to herald a considerable change in our political system, perhaps even going so far as to introduce a California ballot initiative system of a kind which I think has caused many problems. Certainly it begged a lot of questions about how massive tax rises should be defined, and indeed perhaps, following the comments of my noble friend Lord Foulkes, whether massive reductions could also be the subject of a ballot.
I was also concerned that at the time the then leader of the Opposition and his team did not wish to give oral evidence to the committee, despite being invited to do so. I am therefore very glad that the current committee has been pressing the Government to give their opinion on these issues. I hope that the Minister who has the possibly unenviable task of responding to the debate will be able to give us more information about the Government’s precise plans.
In that connection, I have learnt—and certainly the point has been made—that the Government are proposing to transform the leaders of 12 large councils into mayors, with mayoral powers, and then to ask for this to be subsequently confirmed in a referendum at some unspecified date. That seems to be an extraordinary way of bringing in a change. If you agreed with referendums, presumably you would ask the people beforehand, but it seems very strange to bring in this change and then, at some unspecified date, to ask for it to be confirmed. Perhaps in his reply the Minister can enlighten us on that specific point.
In some ways it is difficult to argue against referendums, certainly when one hears comments such as, “Let the people decide” and “Let the people’s voice be heard”. However, I share the concerns of both the committee and many others who have spoken in this debate that, despite what the Government say, we have tended to proceed on an ad hoc basis for a variety of political reasons and for political expediency. Certainly, the precedents are not good. The 1975 referendum was essentially devised as a way of massaging divisions in the Labour Party. I think that the current Minister and I—I was a junior member of his staff in the Labour Party at the time—both remember that period very vividly. Indeed, the referendum which was unexpectedly —to me, at least—announced in April 2004 and which has been referred to in detail by the noble Lord, Lord Liddle, also seemed to be an announcement for short-term political consideration rather than a decision thought out on the basis of constitutional principle.
I believe that we need to think about when we want to use referendums, and I also believe that we should try to proceed on a cross-party basis as much as possible. That might be seen as a naive belief in our party-political system; none the less, when we talk about constitutional innovations and major constitutional changes, it would be much more satisfactory if cross-party, or at least a fairly broad measure of, agreement could be achieved in those circumstances.
We need to think about how far we are a parliamentary or representative democracy and how far we want to move towards being a plebiscitary democracy. The noble Lord, Lord Liddle, mentioned the debates about the Lisbon treaty and I largely agree with him. It was a long, complicated treaty and I would be the last person to say that members of the public are not capable of judging for themselves the nature of a treaty such as that. However, one part of me wonders what Parliament is about if it is not there to scrutinise in detail, line by line, treaties and then come to a decision as a result. That seems to be a fundamental element of a representative democracy and it is certainly something that we should think about very carefully before changing it. Sometimes a referendum can seem to be an abdication of responsibility in which a Government say, “Oh well, this issue is too difficult. Let’s not deal with it ourselves”, yet sometimes in politics you need the courage to make difficult political decisions.
I was not going to mention the north-east referendum at all, having been indelibly scarred by the experience. However, I was provoked into doing so by the comments of the right reverend Prelate the Bishop of Chester and those of the noble Lord, Lord Brooke, who I think, to my horror, said something about the north-east being a “far-off fastness”. I say to the noble Lord, Lord Brooke, that if you live in the north-east, you think of the south-east of England as being a far-off fastness.
I do not think that the north-east referendum was a case of a Government very keen on the idea trying to foist it on an unwilling population. The genesis of north-east devolution is rather different. Many north-easterners—indeed, I was one of them— campaigned for years to try to promote the idea of regional devolution, and the Government, of whom I was very proud to be a part, had some members who were not very enthusiastic about it. I very much agreed with the comments made in an intervention by my noble friend Lord O’Neill, who said that of course a referendum is very much influenced by what is going on in the country at the time of that referendum.
I say to the right reverend Prelate that there had been many opinion polls before the actual referendum in the north-east which showed that people favoured the idea of regional devolution and yet the timing of the referendum must, in many ways, have delighted the No campaign almost beyond its wildest dreams. There was an anti-politician feeling around which was not helped by the fact that MPs’ expenses were published for the first time and their salaries, secretarial expenses, living in London allowances and all the rest were added up as if there were a huge inflated sum which MPs were putting in their pockets. Although I am a strong supporter of the Scottish Parliament, it was also unfortunate that at that precise time the estimates of the building in Edinburgh happened to be more than 10 times the original estimate and, therefore, if you were a No campaigner saying, “Who wants a lot of extra expensive politicians and a white elephant?” then these things were grist to the mill. I console myself by remembering that in Wales there was a very strong vote against devolution in the 1970s but, none the less, public opinion can and does change. Although I may not be around myself, I hope that this will happen in the north-east.
Quite rightly, the report looks at international examples. I wish to add one which does not appear in the report: it is interesting that Germany, a strong and decentralised democracy, is very much against national referendums because of past experience particularly in the interwar years and when the regime used them to manipulate public opinion and to engineer particular outcomes.
In conclusion, I think that the committee is right to urge caution. We need to think carefully about referendums becoming an integral part of our system. Preferably, we should proceed on a cross-party basis. In highlighting these points, this debate is very much to be welcomed. Like others, I look forward to the Minister's reply without envying him his task.
Baroness O'Loan
My Lords, this is a carefully reasoned and well evidenced report on the use of referendums. The questions addressed by the committee are very specific and address the range of key issues fundamental to this debate.
Perhaps the most compelling conclusion is that contained in paragraph 94 of the report, which states:
“Notwithstanding our views that there are significant drawbacks to the use of referendums, we acknowledge arguments that, if referendums are to be used, they are most appropriately used in relation to fundamental constitutional issues”.
The committee went on to give us an indication of what it regarded as fundamental constitutional issues. The list was not definitive, but it was strongly indicative of the boundaries which the committee considered reflect the appropriate use of referendums.
Those referendums which have taken place within the United Kingdom since 1973 fall largely within the definition of constitutional issues, although it is questionable whether they were all fundamental constitutional issues. Perhaps the most significant one for me was the Belfast agreement in 1998, in which 71.1 per cent of those polled gave community consent for the continuation of the Northern Ireland peace process on the basis of the agreement. The road to peace was long and hard, both before and after the agreement, but the referendum and the breadth of the provisions of the Good Friday agreement formed a sound basis on which the community could embrace the proposed mechanisms for peace. Although we continue to be subject to paramilitary activity, the majority of the population are focused on the economic and social development of Northern Ireland. I would argue that that is the proper use of a referendum.
The committee noted the claimed positive features of referendums, but was persuaded by the counter arguments to recommend limitations on their use. The limitations are well articulated in the report: that referendums tend to be dominated by elite groups—we have certainly seen that; that they can have a damaging effect on minority groups; that they may block progress, but they do not settle the issue anyway; that they fail to deal with complex issues; that they tend not to be about the issue in question, particularly when the issues are very complex; that voters show little desire to participate in referendums; that referendums are costly—already today several noble Lords have mentioned the £120 million cost of a national referendum; and, most importantly, that they undermine or have the potential to undermine representative democracy.
The committee concluded that there are significant drawbacks to the use of referendums. It noted that,
“we regret … the manner in which referendums have been used, often as a tactical device, by the government of the day”.
The committee recommended that, where possible, cross-party agreement should be sought on the circumstances in which it is appropriate for referendums to be used. Yet, as has been said by noble Lords today, we do not have cross-party agreement on the current proposed referendum and I am not even sure that there is coalition Government agreement on the proposed referendums.
There are many complex issues which evoke calls for referendums. For example, in response to rising crime levels there were calls for the return of birching in the 1950s and since. There are regular calls for the reintroduction of capital punishment and for the banning of immigration. There are calls also for a referendum on the issue of assisted dying. These are profound and fundamental questions. Should we have referendums on all these issues as well?
I want to use the issue of assisted dying to explore this matter through the evidence given to the committee. There are opinion polls which regularly indicate that a majority of people would favour a change in the law on assisted dying, but that is not, of itself, a sufficient reason for changing the law. Few would suggest that Parliament's role is simply to legislate in accordance with what opinion research suggests. Obviously, public opinion has to be given due weight by legislators, but like everything else it has to be examined thoughtfully and its significance assessed. When one speaks to the disabled and the terminally ill, they use one word to describe their reaction to the possibility that the state will license killing and that word is fear. They are afraid. Despite the popular calls for euthanasia or assisted dying, none of the disability organisations, and none of the organisations for sufferers from diseases such as MND or MS, has called for it.
In reality, referendums are helpful only in telling us what individuals say in response to a given question. They do not tell us much, if anything, about the respondents themselves, about how knowledgeable they are, for example, on the subject in question and how strongly their views on the subject are held.
Like so many issues, assisted dying is a highly complex issue, transcending a number of specialised areas of expertise, including law, medicine and ethics, on which few people can be expected to have any in-depth knowledge. To say that is not to argue that the opinions of people who have an incomplete understanding of any subject should be of no account. We all have opinions on subjects about which we may know little or nothing, but we cannot seriously expect our opinions to be translated into legislation simply because we hold them. Sound law-making has to be founded on solid evidence and objective assessment as well as on public opinion. It is Parliament's role to examine the evidence on any particular issue in an objective and dispassionate manner and to reach balanced conclusions.
For example, the noble and learned Lord, Lord Mackay of Clashfern, took evidence from more than 140 expert witnesses in four jurisdictions before reporting. We also had lengthy debate on the Joffe Bill. That is quite different from the sort of spin and media treatment that issues will receive in the media, which is the source of many people’s knowledge of any subject and which will lead, almost inevitably, to a given result in the polls.
The committee examined initiative processes which allow citizens to propose statute laws, constitutional amendments or broad policy principles or to challenge statutes and amendments passed by representatives. The committee was not convinced by the arguments in favour of those initiatives.
Reference was made in the evidence to the experience in Oregon, where assisted dying was legalised, after a lengthy and complex legal process. The Act was first passed in November 1994 by a margin of 51 per cent in favour and three years later it was implemented after extensive and multiple legal proceedings. The committee heard evidence from Dr Tolle of the Oregon Health and Science University Centre for Ethics in Health Care. She said this about the vote which introduced the Death with Dignity Act.
“The day after the vote I wrote an article … In that article I described the fact that when people voted, and remember you cannot change anything, you vote yes or you vote no on an initiative, many people were voting about a very tragic experience a loved one had had in end of life care and saying, ‘I vote for anything different’. Many would say, ‘What you have said is too narrow for me, I would include poor pain management, I would include inadequacies in the hospital, I would include poor conversations and planning, I would include much more in the basket and then say yes’. In some ways it was a vote of no confidence about some aspects of end of life care”.
There is a cautionary note there on the limitations of the use of a referendum. Those limitations are well recognised by the committee in its references to complex issues.
The complexity of the arguments in relation to assisted dying is a clear example of why the committee has drawn those conclusions. Complex issues are not amenable to decision-making by a yes/no answer to a question. I am pleased, therefore, to see the government response to the report, which indicates that they will not support the wider use of referendums, but I am a little perplexed that they are holding a referendum which appears to be presenting the people with the choice of alternative voting or first past the post, with no reference to the other options—I think that there are about a dozen options for alternative voting systems—particularly the single transferable vote, which we have in Northern Ireland. It seems to me that deciding to offer alternative voting in a referendum but not to discuss issues of the House of Lords or to offer other options is not consistent with the Government's broader response to the committee's report.
In conclusion, responsibility for decision-making on why and when we need a referendum is Parliament’s, and only those decisions which are of a fundamental constitutional nature should be put to a referendum. For the rest, Parliament should continue to exercise its historic and profoundly important functions.
Lord Wills
My Lords, I rise to welcome the report from the committee, to which I gave evidence when I was a Minister. The report is comprehensive, practical, thorough in its analysis and wise in its conclusions—which is not a surprise given the distinguished membership of the committee, many of whom we have already heard from today. I congratulate my noble friend Lady Jay on assuming the chairmanship of the committee.
It is a timely report, given the new interest in direct democracy. The reasons for that have been frequently rehearsed. There has been a well documented decline of trust in politicians and increasing disengagement from formal democratic processes, and disadvantaged groups and younger people, in particular, are increasingly unlikely to vote at elections. The weakening of old collectivist structures and historic social identities and the rise of a professional political class have all served to undermine engagement with the party politics on which our system of representative democracy depends. Those problems are real and need to be addressed. So it is not surprising that there has been growing interest among commentators and politicians in direct democracy but, as many noble Lords have already pointed out, we need to be very careful to think about improving representative democracy, not replacing it. If nothing else, the history of the 20th century reminds us of the dangers of plebiscitary democracy, and ought to remind us of the virtues of representative democracy.
In the current climate, we cannot take the virtues of representative democracy for granted, so I hope that noble Lords will forgive me if I briefly rehearse what I think they are. Representative democracy allows, through the power of universal suffrage, for the fairest distribution of power among all citizens. It offers space for scrutiny and deliberation on complex issues, and it does so continually as such issues arise, which, in my view, inevitably makes for better policy. Crucially, it fosters the articulation of the needs and aspirations of the inarticulate and the protection of the interests of minorities, all of which are hallmarks of a decent and civilised society.
However, representative democracy can and should be augmented to adapt to new circumstances, and referendums can have their place in that. The arguments for their use are well set out in the report. I share the committee's view that there are “significant drawbacks” to their use, and not simply because of any threat to representative democracy. For example, referendums can be vulnerable to manipulation by the wealthy and the powerful, who can dominate single issue campaigns more easily than they can the complex layers of political activity that characterise the operation of parliamentary democracy.
I recognise the committee’s concerns about the use of referendums as what it describes as a,
“tactical device by the government of the day”,
and I recognise its cogent arguments for defining when referendums should be conducted, but I also read with great interest the evidence from distinguished experts, who laboured to produce such a definition of the terms. For all their wisdom and ingenuity, none of the proposals in the report would be immune from interpretation. In the end, I still believe that, in the absence of a fully codified constitution, it is difficult to avoid a central role for the judgment of politicians on the circumstances in which a referendum should be held.
That is why, incidentally, I think that the committee's approach in drawing up a practical, although not exhaustive, list of instances where a referendum should be held is more helpful than an attempt to construct a theoretical framework. However, I am not as worried as are the committee and many of its witnesses about a central role for the judgment of democratically elected politicians. Of course, politicians will often seek to use referendums for their political ends—that is not a surprise—but they are, in the end, accountable for their decisions. That includes the holding of referendums and their considerable expense—about £100 million, or up to £120 million, if some witnesses to the committee are to be believed. That democratic accountability allows for at least some protection against flagrant abuse.
As the committee concludes, referendums are not a panacea. They are also not the only way of increasing democratic engagement. Some such methods, such as citizens’ initiatives, have considerable drawbacks as we have already heard from my noble friend Lord Hart, but I would have hoped that the committee's tepid conclusion that,
“such tools as a citizens' assemblies and citizens' juries may be worthy of consideration”,
could have been a little more enthusiastic. I hope that it will consider returning to that specific issue in a future report.
New methods of engaging the public in policy formulation through deliberative democracy are potentially very important, in my view, in both engaging the public in politics between elections and improving public policy. Citizens' summits, for example, bring together between 500 and 1,000 people to deliberate on policy, exposing them to a range of opinions and policy options. Those involved are selected randomly but filtered to ensure that they are demographically broadly representative. Such exercises can enable the public to bring relevant knowledge and experience to bear on policy formation that may not be so available to cloistered Ministers and officials. Engaging the public in that way can help to legitimise and entrench policy that might otherwise be unnecessarily contentious.
In a policy paper entitled A National Framework for Greater Citizen Engagement, published two years ago, the then Government set out when they thought that national policy formulation would benefit from greater public participation in such ways. Those circumstances included: where issues will result in significant constitutional change; where individuals themselves need to act in addition to the Government to make a significant impact—for example, on behavioural issues such as obesity or smoking; where there are several policy options on which the Government have an open mind; and where there is public benefit in exploring complex and difficult trade-offs between different policy options—for example, between a personal desire to purchase cheap flights and the societal need to reduce carbon emissions. The noble Lord, Lord Brooke, may infer from what I just said that, although I still stick to my view that the composition and further reform of this House is not a suitable topic for referendums, for some of the reasons that I have already given, I think that it would be wholly appropriate for that sort of deliberative engagement with the public. I will wait with great interest, as I am sure he will, for what the public may decide after due deliberation on the issue.
Any new such mechanisms to re-engage people with democratic processes and improve policy formulation will succeed only if they fulfil five conditions. First, they must register with the public, and that means that they must be regular and pervasive. Secondly, they must be credible—people must believe that they matter. So they should be open and transparent. Participants must be aware in advance how much influence they might have, with a shared understanding of when and how these mechanisms will be used. The Government must not embark on engagement for the sake of it with no discernible outcome. Thirdly, they must be systemic; otherwise people could too easily regard them as a version of the politicians' tactical device that the committee so deplores. Such deliberative assemblies should represent a permanent change to the process of policy development. Fourthly, they must be representative, as accessible as possible and include a broad spread of the population. Finally and importantly, such mechanisms must also be consistent with the primacy of representative democracy. Such new mechanisms should feed into parliamentary consideration of issues, not replace them.
Towards the end of their time in office, the previous Government conducted an exercise, unique in this country, in such popular, deliberative policy-making. It was conducted by TNS-BMRB, a well known market research company, independently of government. This project explored the potential for a written statement of values, perhaps to act as a preamble for a Bill of Rights, the merits of such a Bill and the potential for a written constitution. The results of these deliberations were not always comfortable for the Government and their stated policy and led the debate into areas that the Government had not always expected, but the deliberations were notable for their seriousness, the commitment of those taking part and the good sense of the conclusions. The Government learnt valuable lessons about the conduct of such exercises for the future. The general election intervened before the Government could build on this work, but TNS-BMRB produced a detailed and comprehensive report, and I commend it to all noble Lords with an interest in our constitutional arrangements. I hope that this Government, who in theory are committed to such innovations, will take note and continue the work of their predecessors in this area. I hope that the Minister can give me some comfort in his reply. This report on referendums makes an important contribution to a debate which will undoubtedly continue, and we all owe the committee our thanks for its work.
Lord Rodgers of Quarry Bank
My Lords, as other speakers have said, the Constitution Committee was guided through this inquiry by my noble friend Lord Goodlad. As a member of the committee, I too pay tribute to his calm chairmanship, as on other occasions, and I enjoyed his anecdotes today. I also thank the noble Baroness, Lady Quin, who spoke earlier, who persuaded the committee to look into the role of referendums. It was prescient, given the outcome of the general election, but inevitably, on the eve of the dissolution, few future Ministers kept the report by their pillow when it was published on 7 April. The Government's response appeared six months later, only 10 days ago.
In paragraph 226, the committee said—and I repeat what others have said today:
“Referendums are not a panacea”.
It continued:
“We note the arguments for their use as a way of strengthening the democratic process. The drawbacks and difficulties of their use are serious”.
Here I follow the noble Lord, Lord Pannick.
In his letter of 30 September covering the response, Mark Harper, the Minister for Political and Constitutional Reform, said:
“Referendums are an important part of our package of reforms”.
He added that the Government,
“does not share the Committee's general concerns”.
So there is a significant difference of emphasis and style between the report and the response. For my part, I stand firm to the report.
I am not easily persuaded to welcome referendums. I did not like the decision to make what became the 1975 Common Market referendum—so far, the only nationwide referendum in the United Kingdom—although once settled, I campaigned for yes. The referendum was clearly a device to hold the Labour Party together and to stay in what became the European Community and then the European Union. The report says it regrets,
“the ad hoc manner in which referendums have been used, often as a tactical device”.
The response snaps back that the Government “does not share” that description, but that was precisely what happened in 1975.
While it emphasises that there are “significant drawbacks”, the report says that if referendums are adopted, they would be,
“most appropriately used in relation to fundamental constitutional issues”.
It then names seven, although it is not a definitive list. The response is a cautious agreement.
The Government are pressing ahead for an elected or partially elected House of Lords. This is certainty a constitutional issue, as it would abolish the House as we have known it, and a referendum would be appropriate. I hope Ministers will confirm that they are considering it for the Bill we expect by the end of the year, although there was no hint of it in yesterday’s short debate. We shall listen carefully to what my noble friend says in his closing speech.
The response says that the use of any major ratchet clauses of the Lisbon treaty will be subject to a referendum, as the Foreign Secretary confirmed last week. I will not pursue further European matters—I listened very closely to what the noble Lord, Lord Liddle, said—except to say that in 1975 the turnout was 64.6 per cent. If the Government were faced by ratchet clauses, I would hope to choose a referendum only if the public believed that they were major issues that should override Parliament.
Let me turn to paragraphs 214 and 215 in chapter 7, “Summary of Recommendations”; and the earlier chapter 4. Despite the need to encourage greater citizen engagement, the committee was not convinced by arguments in favour of citizens' initiatives and local referendums. I think the committee tried hard to give them the benefit of the doubt, but when it came to the point, the oral witnesses were not particularly keen. The government response is disturbing. In the current fashion and language, the Government make the point that local referendums can play a role,
“empowering residents to make localism and the Big Society part of everyday life”.
They continue:
“'This is why we are committed to giving residents the power to instigate local referendums on any local issue”.
I repeat, “on any local issue”. In taking oral evidence, we discussed the possible outcome if there was a local referendum on whether to close a hospital. The witness, the noble and learned Lord, Lord Fraser of Carmyllie, said that,
“where a much-loved hospital is in danger of being closed … the result will be … overwhelming”.
The committee knew, as noble Lords know, that the answer to closing would always be no.
There have been recent campaigns against the closure of A&E and maternity departments. Localism may be attractive, but I am far from happy if the future of the NHS is now to be determined by unrestrained citizen initiatives. New major trauma and stroke services have been developing in London. I am impressed by their progress as it has meant high-quality centres, rather than preserving some very average hospital departments. Inevitably there have been critics, but if the Government are to encourage local initiatives they could mean a set-back to reform.
The July White Paper on liberating the NHS is also about choice and control, sharing decision-making, democratic legitimacy, public engagement, effective dialogue and partnership, and more. But if we are to have referendums on any local issue, I am far from clear that the National Health Service would be better managed and resources more effectively employed. The White Paper states:
“We will give the NHS a coherent, stable, enduring framework for quality and service improvement”.
I hope so.
In their response to the report, the Government say that they are,
“committed to renewal of our political system”,
and that:
“A fundamental concept … is the transfer of power from the Executive to Parliament, and from Parliament to people”.
That is fine, but I am yet to be convinced that our freedoms and our security would be better protected by an endless series of referendums rather than by established elected institutions.
Lord Desai
My Lords, it is a great pleasure to follow the noble Lord, Lord Rodgers. I too join everyone in congratulating my noble friend Lady Jay on having got the chairmanship of the committee and on introducing this debate. Since quite a lot has been already said, I should like to take a different tack. The argument that referendums are imperfect or that they are not a panacea is not news. Nothing is perfect and nothing is a panacea. Even the representative democracy that we have is not a panacea.
The arguments made that decisions taken at referendums are influenced by other extraneous events or variables can be said about any election. When an election takes place in a constituency, people may vote for person X or person Y on no consideration of reading the manifesto or on knowing the policy or whatever the person may have said, but on the colour of his hair or something like that.
I do not think that we can construct an ideal decision-making system and say, “Referendums are not like this; therefore we reject them”. Our difficulty is somewhere else. Not only, as the committee points out, do we not have a written constitution, but we have a particularly highly centralised decision-making system. Despite devolution we are a highly centralised system in which the primacy of the House of Commons allows the party with a majority to more or less dictate when and how it would choose to have a referendum or not. There is nothing that we can do about it.
The argument has been made that the 1975 referendum was to establish peace in the Labour Party. The ruling party had problems and, therefore, it had to have peace established within itself because it wanted to govern for the next three or four years. Things were difficult from the early days for the 1974 to 1979 Government. My noble friend Lord Foulkes said that keeping the Labour Party united was in the national interest and I agree with him.
But let us look at today: the idea that every passerelle has to be put to a referendum is not driven by logic. It is driven by the fact that the Conservative Party is deeply divided on Europe. If it is not divided, the coalition is deeply divided on Europe. When the ruling party is divided it is very convenient not to have to make the decision on the Floor of the House in a Bill, but to have a referendum and give the responsibility to someone else for getting the wrong decision. Then you are out of it, which can be very useful. I do not want to be cynical, but a system which so crucially depends on a cohesive majority in the House of Commons for running the country will need something like this if there is no cohesive majority in the House of Commons. That is not to be sneezed at.
Another point was cogently made by the committee. If we are going to use referendums we should use them for only major constitutional questions. I quite sympathise with that. The committee lists four or five major constitutional topics. During the passage of the regulatory reform Bill a few years ago, the noble Lord, Lord Norton of Louth, added a schedule. The Bill was designed to speed up regulatory reform—cut the red tape and all that. Many noble Lords were suspicious that this way of doing regulatory reform would bypass the legislature and would make major legislative amendments. Therefore, a schedule listed every Act which should not be subject to amendment by the procedure in the Bill. I apologise for forgetting the exact title of the Bill, but I thought that if the noble Lord, Lord Norton, was here, he would tell me. The schedule to that Bill is a good guide to the many different Acts. It is not an acquis communautaire, but almost an acquis Britannique of all the very important Acts. Perhaps we should start with that list of Acts which cannot be touched except by a referendum.
The only argument for having a referendum would be that citizens feel differently from elected representatives. Therefore, citizens’ wishes should be consulted on such a question. But if that is the case we have to have some sort of threshold on participation and on the size of the majority. Some noble Lords will recall the George Cunningham amendment; my noble friend Lord Foulkes very painfully remembers it. It put down a threshold as to participation in the Scottish referendum. It would be entirely proper to do that. Unless participation is above a certain threshold, such as two-thirds of the electorate, and the final weighted average of the majority in the referendum plus the rate of participation is at least above 40 per cent, the referendum should be declared void. There is no point in having a referendum with very low participation and a majority which represents not the people’s wishes at large, but the wishes of only those who have bothered to come out and vote. That may make the wrong decision. If referendums are to be legislated on, we must insist on a threshold condition on every referendum, regardless of how major or minor the decision at stake is.
Lord Owen
My Lords, my noble friend Lord Pannick is in his place. I accept his definition that a referendum is a powerful, political mechanism to advance a politician’s own political agenda. If we are honest, that is what referendums have come to represent. But where I disagree with the tone of this report is that I do not think that it has been generous enough to that powerful mechanism producing some very important political stability. Edward Heath first suggested that there should be a referendum in Northern Ireland. I was against it at the time, but the more I reflected, the more enthusiastic I became for it. I think that it has shown itself to have been a very important element in achieving what we hope will be a lasting peace in Northern Ireland.
As to Europe, I am utterly convinced that the 1975 referendum has been of tremendous benefit for the pursuit of a reasonably consistent European policy over the years since. My noble friend Lord Rodgers and I disagreed. Even though we went through the Division Lobby against our own party in support of the EU, I felt that a referendum “prior to” could have been won, which would have given us the wholehearted consent which the then Conservative Government were never able to achieve.
Before people are too critical of Harold Wilson’s referendum in 1975, we should remember that there were two elections in 1974, on both of which occasions the promise to have a referendum was held and therefore in some respects endorsed by the British people. But I have no doubt also that, just as the referendum in 1975 was fundamental in keeping a pro-European policy, so it was a tremendous mistake on the part of the Labour Opposition in 1983 to campaign to come out of the European Community without even a referendum. It was one of the contributing factors to that long suicide note and a really massive defeat.
We come to the question of the euro. Which of us now believes that we should be in the European eurozone? The commitment made under duress by all three political parties in the 1997 election to have a referendum has been a fundamental safeguard in avoiding what would have been a huge mistake, given the precariousness of the UK economy. Sometimes a referendum can have a powerful effect without it actually being utilised, and we need to reflect on that.
No one could deny, and the report does not deny, that changing the voting system of the House of Commons is a major constitutional question. There is no argument: if this is to be done, it should be subject to a referendum. I used to think that we could do it as a party-political fix; I believed that when I was leader of the SDP. In those days, I thought it would have been perfectly legitimate. I think that now that referendums have established their authority and credibility on major constitutional questions, nobody can contemplate a change as a political fix. But, as I have said, most referendums come out of a political fix, so this is what we are discussing.
On the first part of the political fix, I shall address my remarks to my noble friend Lord McNally. First, I believe the coalition Government are making a great mistake in setting a date now when they do not have a clue what public opinion is going to be like by May of next year. Common prudence would suggest making that decision later by order and not getting themselves into this tangle at the moment. On the second part, the Government ought to address an important political question. The leader of the Liberal Democrats has already called this a “miserable compromise”, which it certainly is. He should consider when it would be most likely that the British public would agree to even this narrow choice of the alternative vote as opposed to first past the post. It would be if they had seen a coalition work effectively for four years. The natural time for this referendum would be—if we are to have fixed-term Parliaments, which I hope will pass, although it is right for people to say that it is still to be accepted and the legislation still has to go through—in 2014.
My next appeal is to the Labour Party—especially to its new leader, for whom I have high hopes as he comes from a completely different generation—to think again on this issue. I do not deny his having fought an election to have the choice of the alternative vote, and he is extremely wise as the leader of his party to say that he is going to vote for it. But there is a deeper question here, and it is basically a democratically one. Once a decision has been made for political and tactical reasons to have a referendum, it is certainly open to the rest of us who are not party to this to argue for a proper democratic basis. One of those arguments is the way the question is put, and that is quite right. I have a great deal of sympathy for the comment of the noble Lord, Lord Desai, that there should be a threshold. It was uncomfortable for me personally in 1979, and it helped to lose us the election, but there was not by any standard full-hearted consent in Scotland. I do not believe it would have been right to have gone through with it on that narrow vote and thus with less than wholehearted consent. I am not sure what the definition is, but perhaps the committee will give more thought to what “wholehearted consent” is. Winning by one vote is not enough on a referendum. You are out there to try to create a much greater democratic base for what you are doing, so while one vote may be enough to win an election—although I have my doubts about it—it certainly is not enough on a referendum and is therefore something we should look at carefully.
The deeper question I want to address to the Labour Party both in this House and in another place is that every element of democratic justice calls for at least one other option on the ballot paper, that being proportional representation. There are limits to the choices that can be put forward and I am not going to go into the different systems of proportional representation, but the alternative vote is definitively not a proportional system. It is also a fact that every time this issue has been looked at, the alternative vote has been rejected. It was rejected by the Labour Party’s own Plant commission. It was rejected by the Jenkins commission which was set up by the Labour Party, and it was rejected when the Liberals and the Social Democratic Party set up a commission to look at it. So it seems a travesty of democratic justice that the only alternative for voting in the House of Commons is to be the alternative vote. If the new leader of the Labour Party was to make this an issue, not only would he identify himself with every social democratic party in Europe—it would not be a bad start for a new generational Labour leader—he would leave the way open for the Labour Party in the future to form a coalition with a Liberal Democrat party rather than it just being tied endlessly to coalitions with the Conservative Party. Tactically, it would be a rather good position, but it would also be justified by the present situation. We would also then have more enthusiasm for this referendum.
I must say that my fear at the moment is that of nil enthusiasm. I have long wanted this change to the voting system, but I have absolutely no personal enthusiasm whatever. I am not sure that I will even be able to persuade myself to vote because it is such a miserable compromise. Put in a third option in the form of a proportional system and I certainly would man the barricades and fight for it. I believe, too, that a lot of other people would do the same, and that it would be an enthusiastic debate. Further, we do not need to coincide with the Scottish elections. When listening to the noble Lord, Lord Foulkes, it was the first time I understood the complexity of the ballot paper that the Scottish electorate will have to face. That is a pretty powerful case for not coinciding with the elections in Scotland.
I hope that the issues will be debated fully and I shall finish with these words. Referendums have been good for British democracy, but used too frequently or in a foolish way, they will not work. The safeguard is in the form of both Houses of Parliament; they will decide. On the question of the reform of the House of Lords, personally, I would leave this open. If the parties in the House of Commons can come to an agreement on what House of Lords reform should be, I would not wish for a referendum. The issue that those of us who are not party to the debates should hold over them is that if they come out with some cobbled-up compromise that cannot carry conviction with the three parties in the House of Commons, then the House of Lords would be fully entitled to demand a referendum.
Lord Grenfell
My Lords, it is a great pleasure to follow the noble Lord, Lord Owen. He has given us much food for thought in his authoritative speech, and from the perspective of these Benches I might say some marching orders as well. I liked what he said about the coalition Government walking into what I would call a heffalump trap by naming the date for the referendum. The other reason I think they have made a mistake is that they do not know how long it will take to get the legislation through, and particularly through this House. We know that a serious lead time is needed before referendums can be held.
I join others in congratulating the noble Lord, Lord Goodlad, and the committee he lately chaired on yet another first-class report. I congratulate also my noble friend Lady Jay on taking over the chairmanship of this important committee and on her very impressive presentation of this report. It is a measure of the interest in it that some 13 out of the 19 participants in the debate are not members of the committee. As one of the 13, I intervene briefly to address only two matters—referendums on constitutional issues, as discussed in chapter 3, and the question of thresholds, addressed in chapter 5.
I have never been a fan of referendums, and I do not believe I am entirely alone in that among noble Lords. For instance, I noted in the published evidence that my noble friend Lady Quin—who I am happy to see in her place and whose speech I enjoyed—has a strong attachment to fully representative democracy. I take much comfort from that. However, that said, I recognise that despite the many negative features of referendums—not least the almost Napoleonic urge of Governments these days to use a direct appeal to the people for tactical advantage—we are coming to accept that referendums, if used sparingly to supplement, not replace, representative democracy, need not necessarily pose a threat to our democratic system. As the committee concluded, they may become a part of the UK’s political and constitutional practice—I rather think they have already—and that adds urgency to the committee’s rider that, where possible, cross-party agreement should be sought as to the circumstances in which it is appropriate for referendums to be held.
The noble Lord, Lord Liddle, gave a masterful lesson on the need to avoid resort to referendums on complex issues such as ratchet clauses and so-called transfers of power in the EU. Not long ago I was spending almost all my waking hours locked in communion with the text of the Lisbon treaty, and the nightmare thoughts of submitting it to a referendum occupied my unconscious hours.
The question that preoccupies me is whether or not referendums should be held on constitutional issues. I read with great care and interest the evidence given to the committee on this point, particularly the evidence given by the Government. The argument in the Government’s memorandum submitted to the committee that referendums should be used,
“only where fundamental change in the constitution of the country is under consideration”,
appears at first glance to be sensible. However, as many members of the committee and my noble friend Lady Jay noted, it begs two questions: what is a fundamental change and who decides that? These questions were so thoroughly examined, both in the published evidence and in the body of the report, that it would be presumptuous of me to go over that ground in the presence this afternoon of so many of those who participated in the proceedings. Instead, I intervene in the debate to express my profound satisfaction that the committee, while recognising the impossibility of defining precisely what is a fundamental constitutional issue, had no difficulty in including the abolition of either House of Parliament in its non-exhaustive list of those it felt most obviously fell within that category. This is a very important conclusion.
As my noble friend Lord Hart of Chilton recalled, my noble friend Lord Wills, in his previous incarnation—he was a thoughtful Minister in the Ministry of Justice—had stoutly defended before the committee his and the then Government’s contention that while a move to an all or mostly elected House could be considered a fundamental change in its composition, the reform as a whole could not be considered of fundamental constitutional importance as it was not intended to involve any change in its powers or functions. Many, including myself, had great difficulty in accepting this contention.
As I have said before in your Lordships’ House, the coalition Government and those on other Benches, including where I sit—but not myself—who are calling for an elected second Chamber are not calling for a simple reform; they are, whether or not they care to admit it, calling for the abolition of this House and its replacement with something entirely different. If that is not a fundamental change of far reaching constitutional importance I do not know what is.
In the debate in this Chamber yesterday, initiated by my noble friend Lord Hunt of Kings Heath, some of us challenged the Government’s repeated assurances that a move to an elected Chamber would not bring about a significant change in the balance of power between the two Houses. For reasons which need no airing in a take-note debate focused on a report on referendums, I remain unconvinced by this assurance and therefore welcome the committee’s conclusion that abolition of either House falls within the definition of a fundamental constitutional issue and is consequently, in my view, one where a referendum should be deemed appropriate for the envisaged so-called reform of the Chamber. I agree with the noble Lord, Lord Norton of Louth, and others when they point out the glaring inconsistency in the Government’s treatment of the proposed move to AV compared to its treatment of Lords reform.
I have no doubt that the abolition of this House and its replacement by an elected Chamber should be submitted to a referendum. The warnings of the noble Lord, Lord Pannick, and those of my noble friend Lord Hart, are well taken, but I do not think the British electorate cannot be helped to understand what is at stake in such a significant constitutional change.
Finally, and briefly, I turn to the matter of thresholds, discussed in paragraphs 180 to 189 of the report. I note that the evidence the committee received was broadly against turnout thresholds and super-majorities; and that it led, after its careful weighing of the advantages and disadvantages, to its conclusion at paragraph 189 that there should be a general assumption against them. However, the committee recognised in that same conclusion—this is worth recalling—that,
“there may be exceptional circumstances in which they may be deemed appropriate”.
This language is obviously an accurate reflection of the committee’s sentiments, but I find it disappointingly weak. There are strong arguments for a voter turnout threshold for referendums on fundamental constitutional changes, as advanced by some of the witnesses. I accept the point made by Professor Butler and others that the no side can defeat a proposal by simply encouraging people to stay at home or to sit on Brighton beach with handkerchiefs on their heads. I accept also the difficulties posed by inaccurate, out-of-date electoral registers—which is not, however, an insoluble problem—but I am not comfortable with the idea that a major constitutional change can be either approved or disapproved on a very low turnout. I am aware of being in a minority in holding this opinion and I have no settled view on where the threshold might be set, but I remain disappointed with the conclusion’s words, “may be deemed appropriate” where I would prefer to see, “would be deemed essential”.
We will be looking again at many of these issues when the Parliamentary Voting System and Constituencies Bill finally reaches this House. In the mean time we have to thank the noble Lord, Lord Goodlad, and members of the committee for the excellent report, which will inform our discussions. They have done this House and the whole of Parliament a great service.
Lord Woolf
My Lords, I, too, was a member of the Constitution Committee at the time it was considering this issue, but of course I am no longer a member. I thought the fact that the committee selected the issue of referendums, or referenda, as an appropriate subject for its consideration was indicative of the importance that the part of the Constitution Committee plays within the workings of this House. We should take satisfaction from the fact that there are committees which are prepared to tackle extraordinarily difficult topics in a way which is helpful to the consideration of important issues. It was a privilege to be a part of that committee under the chairmanship of the noble Lord, Lord Goodlad. It is clear from the admirable way in which the committee’s report was opened to the House by the noble Baroness, Lady Jay, that the noble Lord’s successor meets the calibre that the Constitution Committee requires if it is to be properly chaired. We had a masterly, if I may use that term, laying before us of the contents of the report.
The thrust of the report, read as a whole, is clear. It says not that a referendum can never play a proper constitutional part in the workings of our unwritten and unentrenched constitution, but that those occasions should be strictly limited to where it can be done appropriately. If that be the situation, it is inevitable that political considerations will influence the Government of the day when they think that there should be a referendum. All that it is possible to do is develop conventions one by one which ensure that, in espousing a referendum on a particular occasion, we are not further undermining the strength of parliamentary representative democracy, the fundamental basis of which has been that the citizens of this country express their views by voting into power Members of Parliament and, through them, the Government of the day. Each time that people decide that there is a need for a referendum, they are to some extent undermining the commitment of this country to representative parliamentary democracy. For that reason alone, I suggest that we should use it only where we are satisfied that it will contribute to the proper governance of this country to do so.
What are the tests? The committee made it clear that there was no satisfactory single test. It was identified that the obvious situation where referendums may be able to play a part is where significant or fundamental constitutional change is proposed. However, as has been pointed out more than once during this debate, the definition of fundamental constitutional change is an issue on which views can differ. I do not need to remind this House, which will in due course be addressed by the noble and learned Lord, Lord Falconer, on behalf of Her Majesty’s Opposition, that Governments can make deplorable mistakes as to what is a fundamental constitutional change. The Government of which he was a Minister thought that to change the role of the Lord Chancellor was not a matter that involved a fundamental constitutional change, albeit that subsequent events have shown beyond peradventure that it involved reconsidering and redefining the relationship between the judiciary, the legislature and the Government, all three arms being critical to the proper working of the constitution.
So we should heed the message of the report. If we are to adopt the referendum as part of our constitutional practice, we should ensure that it plays no more part than it should, having regard to the circumstances when it can supplement our basic approach to the governance of this country.
Lord Inglewood
My Lords, as one of those Members of the House speaking who was not a member of the Constitution Committee which has prepared this most interesting and worthwhile report, I should explain that the reason I rise to speak is that much of my active political life was spent in the European Parliament, where I was much closer to referenda than would probably have been the case had I been engaged in domestic politics.
That experience has made me less fond of referenda. My heart says yes; my head says no. Representative parliamentary democracy and the supremacy of Parliament, however foxed they may appear, are nevertheless very important. I am concerned that the political class of which we are all part sometimes seems to assume that everybody wants permanent participatory political revolution, somehow leading to the hegemony of the politically active. A lot of empirical evidence suggests that many people who vote in referenda do not do so on the basis of what is on the ballot paper, in slightly the same way as they often do in by-elections. It was put to me rather graphically by an Irish friend, who said, “It doesn’t matter what it says on the ballot paper; they always vote about abortion”.
If the point of a referendum is to give the public a direct say on a particular issue, it is not being achieved if the electorate cast their vote for some other completely different reason or simply stay at home on a “plague on both your” basis. As we have seen in the houses past 30 years a widening in the application by the courts through judicial review of the overriding test of reasonableness in Governments’ decision-making, I become concerned that the referendum does not necessarily achieve that.
Process is important in decision-making—after all, that is what democracy is all about—but so is the essential character of the decision that is taken. Both matter, because when political decisions are taken, particularly those of the kind that are being considered in the context of this debate about referenda, it is important that the legitimacy of what is decided is accepted. That is particularly true if the outcome is one with which you personally disagree. We all become quite happy, even if we are a bit concerned about political process, if the outcome aligns with what we want to occur. One has only to look at the result of the 1975 referendum on whether we should remain in the European Community. We still find people arguing that the issue is not settled.
I am not sure how important my own personal views on this might be, other than possibly to myself, because we hear from the Government that legislation will be brought forward to bring referenda into our system under certain circumstances. However, if we do that, everybody should know what the new rules of engagement might be. If one looks back at the spectacle of the political debate that took place about whether there should be a referendum on the Lisbon treaty, one finds it pretty unedifying. In my judgment, there was massive posturing, humbug and manoeuvring, ostensibly in the interests of good governance, which, except in a few honourable cases, was basically motivated by partisan political aspirations. That did nothing other than degrade further the relationship that exists between the public and politicians. In short, it is not the way to run a country. It is a general proposition to which I think almost everybody would subscribe that there should be clarity in what the law is and what the rules are. That is important both for British citizens and for those who, in one way or another, might be affected by the result of a referendum in this country.
I was a tiny bit surprised that the committee and the Government seemed to think these should be dealt with on an ad hoc basis by Parliament because it was so difficult to write the necessary definitions into law. Other countries seem to do it perfectly well. Cannot we? Are our judges more stupid or is our law more difficult than other nations? I do not think so. The law courts and in particular the Supreme Court are set up in order to settle difficult points of law and are manned by first-class legal minds who can do it perfectly well.
The noble and learned Lord, Lord Woolf, has just said that he believes we should evolve a series of conventions to do this. It would be nice if that could evolve over time, but I do not think we have enough time. Anyway, one might say that Parliament is always sovereign so it can rewrite the rules as and when it wants. If we introduce clarity, we will introduce a valuable check on the way that referendums evolve in their application in this country. The most important thing is to make it as difficult as possible for the Government of the day to gerrymander the legislative process in order to implement the policies that they want to get on the statute book.
Lord Anderson of Swansea
My Lords, I join the noble Lord, Lord Inglewood, in his scepticism about referendums. I also join the noble and learned Lord, Lord Woolf, in his concern about parliamentary democracy—a theme which has been echoed by many others in the debate. I also join the broad, overwhelming consensus for congratulating the framers and writers of this report. For me, it is like a very good textbook covering all the areas, but with the added element that it is a textbook written by practitioners who know the how of things, and how parliamentarians and the people respond.
The report covers a range of arguments for and against, some of which are contradictory. Referendums settle an issue; no, referendums do not settle an issue. The answer is that you choose your referendum. Some do, and some do not. It could be argued that the referendum on the Northern Ireland settlement was quite decisive and the extremists were unable to mobilise against it as a result. The same might be said about the recent referendum in Turkey on constitutional matters where the military, however tempted, would find it difficult to stand against such a substantial majority. However, the recent referendum in Moldova, which was boycotted by the opposition, solved absolutely nothing. Were a referendum to be held in Sudan next year, one wonders whether the results would in fact lead to closure in respect of constitutional changes within Sudan.
Obviously, if opponents do not like the result of a referendum, they can rerun it—as we saw, for example, in Denmark, where the second referendum, with rather cosmetic changes, was accepted, and also in Ireland. There must be a degree of scepticism.
I join the debate with my personal experiences. Apart from the referendum on Sunday opening in Wales, in which I played a minor part from exile in London, I played some part in the referendum in 1975 on the Common Market. It was clear—who can doubt it?—that the Cabinet wanted to avoid reaching a decision on the issue because it was deeply divided. There were heavy voices within the Cabinet speaking against the European Community, so a “god out of the machine” device—a referendum—was used in the hope of solving the issue. The status quo in 1975 was that we were already in the European Community, so there was a major premium among the populace in voting for the status quo, which was an important matter. But has it closed the issue? It had not closed it by the time Tony Benn and others said, “Let the people decide”. The people decisively decided in 1975 and there were no major changes between then and 1983, but Tony Benn and others were not reconciled to Europe. Even now, there may be 60 or 70 members of the Conservative Party in the other place who would withdraw from the European Union tomorrow if that were possible. There is not closure.
I recall speaking with Edward Heath on the yes platform in 1975 against my noble friend Lord Kinnock; and yet I was with my noble friend in a later referendum, in 1979, on devolution in Wales. We were sceptical about the motives of those in favour of devolution and we used the argument of the slippery path to independence and so forth. I confess that we pressed for a referendum and for the 40 per cent floor as a tactical device at that time. Who can doubt that in most of these issues it is tactics that prevail and dominate? The result of that 1979 devolution debate in Wales was a massive majority—four to one—against the Government’s devolution proposals. In 1997, however, broadly the same proposals, with some minor administrative changes, were put before the people of Wales and there was a vote in favour.
What had changed? The proposals had not changed. The context had changed. In 1979 there was a highly unpopular Labour Government at the fag end of their life and there was great scepticism among the people. They wanted to give the Government of the day a black eye. In 1997 there was a popular Government led by Tony Blair. All the media appeared to be in favour of the proposals in 1997. Yet, even with all the media attention, there was a 50 per cent turnout and the vote was 25 per cent for and 25 per cent against. Had it been 24 per cent in favour and 26 per cent against, would that have led to closure?
Similarly, although the vote on the Quebec question in Canada was against, it is not a dead issue. The proponents of “Québec libre” will keep seeking a referendum in the hope that one day there will be a narrow majority and then there will be closure.
Of course, the key difference in Wales was who was making the proposal in 1997 as against the position in 1979. Had there been a 40 per cent or 30 per cent turnout instead of 50 per cent, would that have changed the legitimacy of the result? There is no going back in Wales now, but it was on a very narrow majority. It was almost like the Ryder Cup, going to the last tee. It could certainly have gone the other way.
My own experience has also included campaigning for a yes vote in France on the Maastricht treaty. It was clear to me at the time that the details of the Maastricht treaty played virtually no part in the debate. The real issue was whether you liked President Mitterrand. On the platform, I was asked about immigration and various farm subsidies, which were virtually irrelevant to the subject under discussion. Compare that with the French referendum in 1968 put forward by President de Gaulle on an administrative question. The actual subject played little or no part in the result. It was a good opportunity for the people of France to reject President de Gaulle, and he resigned fairly shortly after that. Then there was the first Irish referendum on Lisbon, when the key issues for the no campaign were abortion and neutrality, which had nothing to do with the Lisbon treaty. Of course, much of the debate was dominated by one very rich individual; just as one fears that on a referendum now, Mr Murdoch, a non-citizen, will play a major role.
So what are my conclusions from these experiences? First, referendums do not necessarily settle matters. One thinks of the 1983 suicide manifesto of my own party with respect to Europe. Secondly, even if there is a yes/no question, the debate may focus on irrelevant questions. Thirdly, the referendum may be used, as the committee says, in an ad hoc manner and as a tactical device. It is absurd of the Government, in their rather slim and inadequate reply, to argue otherwise. The referendum may often be a partisan manoeuvre; the result clearly depends on the context and who asks the question and when. In Sweden, in respect of the European Union, there was a fairly fixed majority against joining, but there was one brief window of opportunity, which by chance happened when the referendum took place. So it depends when the question is asked. This is wholly relevant to the question that will be posed next May on the alternative vote; the context is likely to be one of cuts and it is very likely that the coalition parties will lose substantially, particularly the Liberal Democrat party. There will be a fairly half-hearted advocacy by the Government and, effectively, the Liberal Democrats will be taken for a ride. It is very likely that the referendum on AV, because of the timing and the cuts, will be lost and lost massively.
Do these reflections rule out referendums as an instrument for decision making? No, not necessarily. They may be justified when the rules of the game are in question. One thinks of House of Lords reform, which has been a Liberal Democrat obsession for some time. It is likely that if there were to be a referendum on House of Lords reform, there would be very little interest or participation beyond the M25—or whatever is the English expression for beltway. How does one interpret low participation? On further devolution in Wales, there is a commitment, but devolution is a process. Does one have a referendum on each of the incremental changes? The suggestion that there should be referendums on council tax increases is absurd. It would be like turkeys voting for Christmas. Who is going to vote for a council tax increase? As for the surrender of sovereignty argument, it was put forward as a populist gesture. The truth is that QMV has often helped this country and it has been very much in our interests, so this is rather a silly pledge to please the anti-Europeans.
Overall, I remain sceptical about the case for referendums. I would certainly hear arguments in particular cases, but they should be used in our constitution very sparingly, if at all.
Lord Hannay of Chiswick
My Lords, no one could possibly suggest that this debate, and the report on referendums in the UK that we are considering, are not topical and urgent. For that reason, we owe a debt of gratitude to the Constitution Committee under its two successive chairmen, the noble Lord, Lord Goodlad, and the noble Baroness, Lady Jay. In this Session of Parliament, we are being asked by the coalition Government to approve two major pieces of constitutional legislation that provide for the holding of referendums—legislation on the UK method of voting and that dealing with further transfers of powers to the European Union. By the time this Session is over, we may well have taken two major steps towards embedding referendums in our constitutional practice. As this report recognises, that could have seriously negative consequences, as well as some, at least, of the advantages that their protagonists will advance. Today’s debate provides an opportunity to go in some depth into the wider arguments for and against the use of referendums, which should assist our future debates on the specific measures being put forward.
My main criticism of this otherwise excellent report is that it confines its scope to referendums in this country, although there is the odd reference to the use of referendums elsewhere—in Switzerland, for example. In this debate, many of the participants have ranged much more widely, and they have been right to do so. Limiting the report damagingly narrows the field of inquiry and excludes a number of examples that could usefully underpin the arguments deployed for and against—mainly against—the use of referendums. Is it not relevant, for example, that the German constitution makes no provision at all for holding referendums in the light of that country’s disastrous experience with plebiscitary democracy in the inter-war period? Should we not be paying some attention to France’s experience, in the referendum that General de Gaulle lost and the EU referendum of 2005 on the constitutional treaty? Both were simply votes about individuals. They were nothing whatever to do with the subject on the order paper. The loss of the constitutional treaty was merely a reaction to the unpopularity of President Chirac. Then there is the recent Turkish example mentioned by a previous speaker. All the evidence points towards the vote having been more about the AK Party’s popularity and a precursor of next year’s general election than a considered view of the actual constitutional changes being proposed. One might also cite the Greek Cypriot referendum of 2004, when the country’s president exhorted his people to vote no to emulate the heroic Greek response to Mussolini’s ultimatum in 1940. That list is not exhaustive, but it illustrates just how real are what the report calls the “significant drawbacks” to having referendums.
The main thrust of the significant drawbacks is to undermine the crucial contention by the supporters of referendums that they are in some way a superior form of democracy—a test superior to the system of representative parliamentary democracy, for which our ancestors fought and in some cases died. But how on earth can referendums seriously be considered as a superior form of democracy if fewer people turn out to vote than in general elections, if their votes are cast without fully addressing the issues at stake and if, indeed, they are cast more to register a view on the Government of the day who are asking the question than to provide an answer to the question itself? But if the superior test criterion cannot be answered convincingly, what are you left with? It is just another electoral gimmick with uncertain consequences for our constitutional evolution and, possibly, damaging side effects. That is the sort of analysis that would get any new medical prescription banned or at least substantially delayed.
So much for the significant drawback side of the ledger. How about the plus side of it? Many considerations on that side seem to teeter between the threadbare and the counterintuitive. Can it realistically be maintained that a referendum settles a contentious issue once and for all? The 1975 referendum on our European membership certainly did not do that. Within a few years of that decisive two-thirds/one-third vote, one of our two main parties was campaigning to withdraw. Did the referendum vote on Scottish devolution deter the Scottish National Party from pressing for independence? Evidently not. Should the vote in next year’s proposed referendum on our voting system produce a very low turnout, as it quite possibly may do, will that not feed the controversy rather than settle it?
Then there is the argument that frequent use of referendums and our system of representative parliamentary democracy can happily live side by side, indeed can strengthen each other. I find that totally unconvincing. Once we start to make regular use of referendums, there will be demands for more of them. More single-issue causes will demand that they, too, should have their day in court. We can already see that in the Welsh claims that their future is more important and more worthy of referendum treatment than our adjustments to EU treaty law; such demands will become steadily more difficult to resist. Little by little, the legitimacy of the system of representative parliamentary democracy will be challenged and leached away. Is that something we can happily contemplate?
I hope that the Minister will be able to respond to some of these concerns when he replies. He and I voted in the same Lobby when we resisted the demand for a referendum on the Lisbon treaty, so I imagine that he is not totally insensitive to them. These concerns are, in any case at least, nothing to do with the subject matter of next year's referendum on the voting system. I will vote yes, for the alternative vote—although I would like it to be made properly proportional—but how much better if that were to be done by an Act of Parliament, just as every change to the franchise, from the Great Reform Act 1832 onwards, was carried forward.
Lord Falconer of Thoroton
My Lords, I agree with what the noble Lord, Lord Brooke of Sutton Mandeville, said. We suffer a substantial loss in not having Lord Bingham of Cornhill to debate these issues. He was probably the greatest constitutional lawyer of his generation and he died unseemly early. He would have made a great contribution to these debates and I entirely agree with the noble Lord.
I join other Members of your Lordships’ House in congratulating the committee on its report. The only criticism that I have detected throughout is the fact that there were not sufficient foreign examples. I am glad to say that the noble Lords, Lord Anderson of Swansea and Lord Hannay, have now put that right with their encyclopaedic knowledge of foreign referendums, including those in Greece, Turkey, Cyprus and other countries in which I know that the House has a huge interest. I believe it to be a very good report. It deals with the matter forensically, sets out the evidence and comes to conclusions that it is hard to disagree with.
In this House, we tend to be self-congratulatory; we tell ourselves how good we are on many topics. Very often, we are not that good on every topic, but on constitutional affairs we are good. We have an important role to play and the Constitutional Committee has made a major contribution, over the years that I have been in the House, in informing that debate. This report on referendums is another in that line, and its effect is to make people ask, “Well, why is it wrong”? If it is not wrong, we should be agreeing with it and acting upon it.
I have the most profound sympathy for the gentleman called Mr Mark Harper, whoever he may be. He had the misfortune to sign the Government’s response. I know, from being a Minister, that from time to time you have to sign responses on behalf of the Government. Your problem is generally that you have committed yourself to a particular course of action that the committee’s report rightly identifies to be completely wrong and based on no principles at all. You have two methods by which you can deal with this. Either you say next to nothing—in which case the noble Lord, Lord McNally, would have got up to say it is the most insulting response he has ever seen, as it was so short—or you do what Mr Mark Harper does, which essentially is to fly in the face of the evidence. For example, he says that there is absolutely no evidence whatever that these referendums are done on an ad hoc basis for political purposes when, if you read the report, there are pages and pages of that. The noble Lord, Lord Pannick, set out the evidence, which was overwhelming. Poor Mr Mark Harper; I looked up his previous history and I am happy to tell your Lordships that he ran his own accountancy firm from 2002 to 2006. He cites his interests as being, inter alia: work and pensions, law and order, the USA and Israel. His three interests are: travel, walking the dog and going to the cinema—none of which equipped him for the terrible task with which he found himself.
I congratulate the noble Lord, Lord Goodlad, who has provided leadership for the committee, and the noble Baroness, Lady Jay, who I have absolutely no doubt will continue to provide such good leadership. Our role in this House on constitutional matters is, ultimately, not to initiate major constitutional change but to scrutinise, amend, improve and, in exceptional cases where we foresee disaster or believe that our constitutional values are at risk, to block. The noble and learned Lord, Lord Woolf, referred to the major constitutional changes that I was involved in. What this House did in relation to those was to slow them down dramatically, improve them and then pass them. That is a good model for the way that this House should deal with them.
We now face a major period of constitutional change, led in practice by the Liberal Democrats. The noble Lord, Lord McNally, who is much liked in this House, has a critical role in it. It is none the worse for the fact that it is led by the Liberal Democrats, and I pay tribute here to the support that they provided for the constitutional changes that came through Parliament after 1997—things such as the Human Rights Act, the Freedom of Information Act, the devolution Acts and the reforms to the Lord Chancellor. They supported those consistently throughout and we will, wherever we can, support them consistently.
It is worth pointing out, however, that those constitutional changes emerged from a long process of discussion, led by the noble Lord, Lord Maclennan, and the late Robin Cook, in which both parties were seeking to identify the right and the best changes. The constitutional changes that we are now faced with have not come out of a long process where we were trying to come to the right answer. They have come from five days of shambolic negotiations, in which the prize at the end of the five days was not the best constitutional changes but, in practice, ministerial cars for the Liberal Democrats.
On the changes that we are looking at, the first with which we will be dealing is an alternative vote system. On this side of the House, we supported that system and a referendum in our manifesto. Before the noble Lord, Lord McNally, gets up to point it out, we lost the election but no other party supported that particular proposal—and that proposal is the one which the public are now being asked to vote on in a referendum. That is why the timing of the committee chaired by the noble Lord, Lord Goodlad, as it was, is very apposite. On this side of the House, we agree with almost everything that the committee has said. Perhaps I might highlight some of the points.
Referendums, as the noble Lord, Lord Goodlad, candidly said in his speech, occur on an ad hoc basis for politically driven reasons. I adopt all of the reasons from the noble Lord, Lord Pannick, to destroy the unfortunate Mr Mark Harper’s rejection of that view. The fact that they are ad hoc and politically driven does not mean that they are wrong and I agree with the noble Lord, Lord Owen, in what he said on the utility that they have produced in our country. In Northern Ireland, referendums have also had a beneficial effect. I adopt what my noble friend Lord Wills said in evidence to the committee: that the fact that they are based on politically-driven motivations does not make them bad. They are now accepted as an occasional part of our constitutional furniture and much as the noble Lord, Lord Hannay, may rant away at the effect of referendums, they are here and here to stay. The right course in how to deal with them is exactly as the committee did: to seek to define the circumstances in which they should be used.
When things start, ad hockery is fine but, as time goes on, if no principles are involved then doubt creeps in and confidence in the political system is reduced. I agree with the committee’s approach that major constitutional change will sometimes, if it is not backed by referendums, lack legitimacy. If you use the referendum too much, on the other hand, its abuse and constant use will lead to losing confidence in it as well. In parenthesis, in one of his responses I understand Mr Mark Harper to be saying that it is the Government’s intention to introduce mayors in certain places and get the introduction of the mayor approved subsequently by a referendum. Is that right? Does the noble Lord, Lord McNally, think it a sensible use of the referendum power to introduce the change first, then have it approved by referendum?
We should be careful to set the bar high for the circumstances in which we use referendums. I gratefully adopt paragraph 118 of the report:
“Parliament should judge what issues will be the subject of referendums. In its first report, this Committee stated that it would ‘focus on issues of constitutional significance’ determined by whether an issue raises ‘an important question of principle about a principal part of the constitution’. We believe that this provides a useful test, first, of whether an issue is of fundamental constitutional significance, and second, of whether a referendum is therefore appropriate”.
I say that that is the correct approach. There are circumstances in which referendums are not appropriate. I completely agree with my noble friend Lord Liddle that a referendum was not appropriate either for the Nice treaty, which the Government then led by Tony Blair said would have a referendum, nor for the Lisbon treaty, which the Government led by Gordon Brown said would not. On neither occasion was a referendum appropriate, because they did not satisfy the paragraph 118 test.
On the question of fundamental change to your Lordships’ House, if the change were fundamental—in particular, if you changed the way in which you elect noble Lords—a referendum probably would be appropriate, because that would be a significant change to our constitution.
To allow referendums on a range of local issues, such as excessive council tax increases, would be a dangerous move. I agree with my noble friend Lord Foulkes of Cumnock that that in effect would close yet further the space for good local government, and I would be against the excessive use of referendums in local issues. I am strongly in favour, as are so many noble Lords, of the fact that there are many ways, and more should be developed, to engage the public with their politicians, but that should not include local referendums.
I shall conclude by referring to three particular issues on referendums. First, it must be right that a neutral body should formulate the question. Parliament should definitely approve it, but if we want to have faith in referendums, the question should be formulated by a neutral body such as the Electoral Commission. Why does Mr Mark Harper oppose it?
Secondly, on the timing of the referendum, paragraph 145 of the report makes the case that if the referendum is on the same day as a general election, that will mean that the referendum gets completely swamped. It says that referendums should never be held on the same day as a general election and that there should be a presumption against it being on the day of other elections. The reasoning given in the evidence is that the other elections—the Scottish and Welsh general elections, for example, which will take place on the day—swamp the issue. When there is an election on the same day, the referendum becomes a secondary issue that is inevitably the victim of those other issues. That was the evidence. Will the Minister tell us why Mr Mark Harper rejected that evidence?
Thirdly, the report is generally opposed to supermajorities or voter thresholds, though it says that there is a case for there being a supermajority or a voter threshold where you are dealing with a major constitutional issue. Does the Minister think there is any constitutional issue that is more major than how the first Chamber is elected?
I congratulate the noble Lord, Lord Goodlad, and his committee on an excellent report.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I think the whole House will want to send our sympathy to Mr Mark Harper. Not since Mark Antony outsmarted Brutus has such an orator turned his forensic skills on someone. Here we have the noble and learned Lord, Lord Falconer—a professional wordsmith, a Queen’s Counsel, a positive Cicero—turning all his powers on to an accountant. Now he is appealing for sympathy from the House. I am sure that Mark Harper will survive.
It is difficult to respond to a debate like this. I have a well written 15-minute ministerial response that would cover a number of the issues, but it would not catch the flavour of the debate. I will try to do so instead by responding to some of the questions, but I ask for the understanding of the House. In this debate we have covered Northern Ireland, the role of the Lord Chancellor, links between the judiciary and the legislature, Europe, constitutional reform, local government and elected mayors, and devolution in Scotland, Wales and England. In just some of the speeches, I think there was some rehearsing of Second Reading speeches for future legislation. I will try to respond in the context of the report.
The attitude that I have taken to constitutional reform all my political life is that I agree that one should look for consensus where possible. I agree with the noble and learned Lord, Lord Falconer; I still count as one of the most fruitful and useful periods of my political life the time that I spent serving on the Cook/Maclennan committee before the 1997 election, when we hammered out a lot of the ideas that occupied the first period of the Labour Government after that election. We were pleased to give our support to that range of constitutional reforms.
One should look for consensus, however, only if it can be achieved. I have also said in debates in this House that if the Reform Act 1832 had had to wait for consensus, the Member for Old Sarum would probably still be sitting in the House of Commons. Sometimes constitutional reform is carried through by an individual or a Government with a clear idea of what they want to do and the guts and determination to carry their argument through both Houses.
I shall be frank about where I stand on the question of referendums. The noble Baroness, Lady Quin, reminded us where she and I started on this. I was actually in the meeting of the national executive of the Labour Party when Mr Anthony Wedgwood Benn proposed that the party should adopt a referendum on Europe as its policy, and he could not find a seconder for that resolution. That was because most of the parliamentarians sitting around that table expressed the view of referendums that has been expressed many times in this House and, to a certain extent, is reflected in the report—the suspicion that referendums had been used in the past by fascist dictatorships and that they undermine the essential basis of a parliamentary representative democracy. The fact that a year or so later Mr Benn carried his resolution does not negate the point. I suspect that my generation and those who are older probably share the view of the noble and learned Lord, Lord Howe of Aberavon, that referendums are best kept for Welsh opening hours rather than for more serious matters.
On the other hand and to put it into context, a few weeks ago I expressed these views to one of the younger MPs from my parliamentary party. He fiercely, and with a gleam in his eye, denounced me for such views, saying that if we were ever going to reconnect with the people, we must keep an open mind about the use of different kinds of systems for engaging the public. He was firmly of the view that the use of referendums and some of the ideas for involving people that were outlined in the Power report—such as the new schemes for involving and consulting people via the internet—were the new politics and that we must recognise that.
I read the report with great interest but with a feeling that perhaps there is a generational difference in attitudes to such things. Down the corridor there are people who are willing to look at these issues and challenge some of our more small “c” conservative views about the use of referendums. As the noble Lord, Lord Owen, pointed out, they have been used since 1975, not on a national basis, but frequently and sometimes with good benefit. I take the point that was made about the vote in Northern Ireland, which undoubtedly helped to cement the agreement.
I congratulate the noble Lord, Lord Goodlad, and the noble Baroness, Lady Jay, respectively, on the report and on securing time for this debate. It has been an excellent debate—one of those that you are fearful of when it is your job to reply, as you see all the school debating stars coming out for the game. It is a tribute to the committee that, as has been pointed out, so many of those who have spoken today were not members of it. We get used to having debates on reports where virtually all the speakers were from the committee itself. It shows the quality of this report that it has brought out such a varied range of experts in the topics under review. I also say to the noble Baroness, Lady Jay, that I have not found a committee report that has been so much respected by officials and Ministers. This is not a report that has been put on the shelf and forgotten. It has been read and this is reflected in the legislation that is going through Parliament at the other end. It is difficult at the moment to give all the answers because things may be changing even as we speak.
However, I know that there have been responses to the report—for example, on the wording of the question —which would certainly not abdicate responsibility. This is the Government’s policy. Although it seems that there is a superficial attraction to saying “Hand it across to a neutral party”, it is the Government’s view that is being put to the people. However, they took notice of what the committee said. I believe that an amendment has already been tabled in the other place, reflecting the Electoral Commission’s comments on the question. I hope this will produce the desired result of a question that people find acceptable.
Lord Foulkes of Cumnock
I am very pleased by what the noble Lord, Lord McNally, has said about taking account of some of the recommendations. Will he specifically address the question of holding the referendum on the same day as the Scottish, Welsh and, in England, local government elections? I think the overwhelming view of this Chamber is that that would be a bad thing. Will the Government take serious note of that?
Lord McNally
I am quite sure that the Government will take serious note. One of the things that makes a debate such as this very difficult is the fact that we are talking about legislation that is passing through both Houses. We are talking about legislation which has yet to be debated fully in this House and is at around the midway stage in the other place. I understand that Members have specific criticisms of the ideas. Sometimes they may find to their surprise that the Government are flexible. At other times, as the noble and learned Lord will know from his ministerial experience, the Government will dig in their heels and say, “No, this is the way it’s going to be”. I do not think there is any evidence that the Government are using a steamroller on this. We are listening and consulting.
I saw Mark Harper’s response to the report. To try to get the House at least half on his side, I draw attention to his point that the Government agree that national referendums should be exceptional events, although they do not share the committee’s general concern that such referendums have been used in an ad hoc manner or as a tactical device. With such things it is best to leave it to the academics and historians to take a view. I suspect that local referendums, as somebody pointed out, will be rather expensive and, after a while, irritating. Let us just see how this works out.
I will move on to some of the questions that were specifically asked of me, particularly by the noble Baroness, Lady Jay. She asked whether there would be information provision in the referendum and whether some of it should be independent. Again, the Government have already tabled an amendment to the Bill that will give the Electoral Commission the explicit power to provide information on both first-past-the-post and AV electoral systems. I also think—and this was certainly my experience of the 1975 election—that the two counting systems come together quite effectively. I say to those who preach doom for the coalition after this exercise that the other lesson I learnt was that, although in 1975 the various members of the Cabinet went out to campaign fiercely for their specific points of view, they came back together as an effective Government after the referendum. So that model does work in a referendum.
I have already mentioned that the Government have taken the Electoral Commission’s advice on the wording of the referendum. To the question of who will regulate local referendums, I am given the most helpful response that this matter is being considered. You cannot have better than that. Perhaps more helpfully, on the need for a post-referendum evaluation, about which the noble Baroness, Lady Jay, also asked, we absolutely agree. Indeed, the much maligned Mark Harper also made clear in his response that there would be a proper and full evaluation by the Electoral Commission of the lessons to be learnt from the referendum, and that the Government would take actions following any recommendations that came from that.
I am running out of time to give full responses. I was very interested in the contribution of the noble Lord, Lord Wills. I shall certainly look at the work that he did before leaving office. I told him privately yesterday, and tell him now publicly, that he is a hard act to follow, not least as regards some of the work that he was doing on constitutional reform involving outside bodies and interest groups. I will certainly follow up some of that work.
The noble Lord, Lord Owen, came to the help of the pro-referendum side by illustrating how referendums have helped, if not to settle matters, at least to settle them for a time. He warned about fixing the date, but you cannot win in that regard. If you fix the date, you are considered to be opportunistic; if you do not fix the date, you are considered to be opportunistic. We have settled on the date not, as everyone has said in the debate, because those who want referendums pick only the date when they think they can win. Everybody is telling us that the relevant date will not be a very opportune time on which to hold a referendum on the voting system. We will see. As I say, once the two groups come together to put their arguments, it could be a very interesting and exciting campaign.
If I have missed any major questions, noble Lords can leap up. When I gave my list of things that had been covered in the debate, I missed out the coverage by the noble Lord, Lord Brooke, of the Duckworth Lewis method of scoring at a limited-overs cricket match. I agree with him; I still do not know how it works.
The debate has shown the value of these reports. I agree with the remarks of the noble Baroness, Lady O’Loan, as regards paragraph 94, which sets out the issues for which referendums are most appropriately used. It states:
“To abolish the Monarchy; To leave the European Union; For any of the nations of the UK to secede … To abolish either House of Parliament; To change the electoral system for the House of Commons; To adopt a written constitution; and To change the UK’s system of currency”.
It is not an exhaustive list but it is not a bad one with which to start. We are all indebted to the committee. As I said in the middle of my speech, this report has been closely studied in Whitehall. It is already having an effect on the legislation that is going through the House. We are all indebted to the committee for such a formidable and useful piece of work.
Baroness Jay of Paddington
My Lords, the whole House will be very grateful to the Minister for taking the trouble to give us his personal analysis and description of his reply to the debate. It is very encouraging to hear—as I asked at the outset—that some of the things which were raised in the committee’s report have already been adopted by the Government. We understand, of course, the problems of dealing with this kind of “take note” debate while legislation goes through the other House.
I welcome my noble and learned friend Lord Falconer of Thoroton back to the Front Bench. We look forward to his continuing involvement in constitutional issues although the now famous Mr Mark Harper may be less enthusiastic. I congratulate all noble Lords who have spoken in this very distinguished list of speakers we have heard from this afternoon. I am particularly grateful to those who have commented favourably on the quality and timing of the report. However, as I said at the outset, that praise is primarily due to the noble Lord, Lord Goodlad, who I was delighted to note took part in the debate.
As so often in your Lordships' House, this type of debate has attracted an enormously authoritative group of views from people who have had various experiences in different types of referendums, which they have reported very faithfully. I hope that the House will not think it unfair of me to say that most of those contributions reflected the general scepticism about referendums conveyed in the report. I, of course, support that given the part that I took in the committee’s inquiry.
We have heard from a large number of speakers—this was also noted by the Minister in his conclusion—who did not take part in the committee proceedings as they were not members of the committee. That has enormously enriched the debate. I go so far as to say that today we have had a very powerful form of pre-legislative scrutiny of the political parties and referendums Bill, which we hope will come to us in due course. I hope that we all look forward to those deliberations. Like the Minister, I think that at Second Reading we shall hear again in one form or other some of the contributions made this afternoon. In the mean time, I hope that the House will accept the Constitution Committee’s report on referendums as a timely contribution to our further deliberations.