Referendums: Constitution Committee Report

Baroness Jay of Paddington Excerpts

Tuesday 12th October 2010 Lords Chamber

Moved By

[Baroness Jay of Paddington]

That this House takes note of the Report of the Constitution Committee on Referendums in the United Kingdom (12th Report, Session 2009–10, HL Paper 99).

[Baroness Jay of Paddington]

My Lords, I welcome the opportunity to open this debate on the Constitution Committee’s report entitled Referendums in the United Kingdom. The report, which we published in April, was the last one produced under the distinguished chairmanship of the noble Lord, Lord Goodlad, who I can just see in his place and who I am delighted will be speaking immediately after me. Perhaps I may take this opportunity to pay a warm, personal tribute to the noble Lord’s distinguished leadership of the Constitution Committee and thank him for his advice and support as I took over the chair after the general election.

The committee’s inquiry into referendums was extensive and has proved to be extremely timely. We received a great deal of political and academic evidence, both written and oral, from national and international sources. The committee is grateful to all of those whose evidence contributed to our report and particularly to our specialist adviser, Dr John Parkinson, of York University. I must also thank the Government for their response, but I note that it is rather late, having been received only last week, and perhaps a little thin. But, of course, I realise that in the interim the coalition Government have produced their own Bill proposing a UK-wide referendum on the voting system for the House of Commons. That Bill has already had its Second Reading in another place and begins its Committee stage today. Perhaps some of the recommendations and observations of our committee are acknowledged in the current Bill. I leave the House to judge as I describe the detail of our report. I look forward with great interest to the Minister’s reply, which will give your Lordships a first opportunity to hear in this House the Government’s thinking on the principles and practice of referendums.

As the House will be aware, although there has been very much debate in recent Parliaments about referendums, they remain a relatively untried method of testing opinion in the United Kingdom. This is in contrast to many other modern democracies, including countries such as Australia and New Zealand which share our Westminster traditions and where referendums are a regular feature of political practice. Here, the 1975 vote on our membership of the EEC remains, 35 years later, the only example of a UK-wide referendum, although obviously the referendum method has been effectively used to determine devolved and local government systems. It was against that background that the committee set out to analyse the arguments for and against using referendums as a constitutional and democratic tool, and to make recommendations for their possible future use.

The basic questions come down to these. On the positive side, do referendums improve modern democracy by making voters more involved in decision-making so that controversial issues particularly can be firmly and, one hopes, conclusively resolved? On the negative side, does the use of referendums undermine a representative Parliament and oversimplify complex issues to no great general advantage? Perhaps equally important is the practical question: do individual referendums attract a sufficiently substantive voter turnout to give their decisions authority?

Overall, the committee’s position was more negative than positive. Having listened to all the evidence, we were not convinced by the case for using referendums as a common practice in 21st century governance. We regretted the ad hoc manner in which many referendums have been held—often to deal with political crises or as a tactical device by a government in trouble—while the evidence suggested that difficult issues were not finally settled by a referendum result.

If we look at the history of our 1975 referendum, it seems clearly to illustrate some of these drawbacks. It was, after all, primarily held to resolve internal policy disputes within the Labour Government of the time—about the EEC, of course—but the result certainly did not finally resolve that question, as subsequent Conservative Governments have found out. The Minister may not want to comment this afternoon on the relevance of those negative points to the current Parliamentary Voting System and Constituencies Bill, but I have no doubt we will return to them when the Bill reaches this House.

To return to the report before us today, although the Constitution Committee was sceptical about the general values of referendums, it recognised pragmatically that they are going to be used, and therefore a large part of the report is concerned with when it is most appropriate for a referendum to be held and what are the most effective ways to organise one in order to achieve proper participation and a respected result. We were aware, of course, that enthusiasm for referendums is often politically driven by a legitimate wish to use every possible means to give greater power to the electorate. This is particularly true now, when what one might call the hostile dislocation between government and the governed has become such a major political problem. The coalition Government certainly emphasise this aspect in their response to the committee’s report, saying:

“A fundamental concept … is the transfer of power from the Executive to Parliament, and from Parliament to people. The Government believes that referendums can be a valuable means of giving people a greater say over important issues, at both the national and local level. However we recognise that national referendums cannot and should not be held on every important issue”.

For our part, the committee concluded that if referendums are to be used, they are most appropriately used in relation to fundamental constitutional issues, and that begs the question of what is a fundamental constitutional issue. The committee did not want to duck the question and was clear that it could not provide a precise definition, but has none the less agreed a list of topics for which it thinks a referendum would be appropriate: to abolish the monarchy, to leave the EU, for any of the nations of the UK to secede from the Union, to abolish either House of Parliament, to adopt a written constitution, to change the UK system of currency, and to change the electoral system for the House of Commons. The last is, of course, the subject of the current Bill.

Your Lordships will have noticed that the list does not include reform of the House of Lords as a fundamental constitutional issue. However, I was interested in the reply given last week by the noble Lord, Lord McNally, to a question from his noble friend Lord Phillips of Sudbury, when he said that that was not the Government’s plan “at the moment”. He may wish to expand on that answer. But whatever may qualify as a fundamental constitutional issue, the committee was strongly of the opinion that this should be a decision for Parliament, not government alone. Legislators, not Ministers, should decide whether to hold a referendum. However, the committee and the Government are agreed that national referendums should be exceptional events. On local referendums we are perhaps slightly further apart. The Government have already published a consultation paper on local referendums to veto council tax increases, and their response to our report notes that they are committed to giving people the power to instigate referendums on any local issue as a way of making,

“the Big Society part of everyday life”.

The committee is sceptical about this approach, and while we accept the need for greater local involvement in local decision-making, we think other ways of reinvigorating citizen participation should be explored.

We heard evidence about a distinctive type of referendum, the so-called citizens initiative, where citizens can propose statute laws or broad policy changes. These initiatives have been successfully adopted both in Switzerland and in half of the United States, but most members of the committee felt that it would be extremely difficult to adapt such initiatives to the United Kingdom. We also looked at the idea of citizens’ juries and assemblies. Personally, I am sympathetic to the possibilities that we could develop on this issue, and I was impressed by the evidence of my noble friend Lady Kennedy of The Shaws, who had previously chaired the Power Commission.

The committee had one specific concern about local referendums of whatever type—who is to regulate and supervise them? Currently in our system, the Electoral Commission has no responsibility for local referendums, and my noble friend Lord Wills, who I believe is also speaking in the debate, gave evidence to us as a Minister on behalf of the previous Government saying that he thought it risky to extend the commission’s role to cover them. Can the Minister tell us, particularly given the new Government’s evident enthusiasm for local referendums, how they are to be regulated and whether it is intended that the Electoral Commission should extend its role in this area?

As noble Lords will recall, the Electoral Commission was set up under the Political Parties, Elections and Referendums Act and, under this legislation, is already charged with responsibility for national referendums. The PPERA has not been tested in a national referendum. Our only experience has been the rather ill-fated local referendum on the north-east in 2004. The committee therefore thought it necessary to examine our legal and practical framework in a comparative way. The Minister for Political and Constitutional Reform, Mark Harper MP, has kindly written to me to say that he found the committee’s inquiry about this very valuable.

Our main recommendation—which is now particularly relevant given the proposed referendum next spring—is to require the Electoral Commission to make a thorough retrospective analysis of its first experience in a national referendum and then make proposals for change. Equally, if not more important, we propose that there should be a parliamentary post-legislative scrutiny exercise of the PPERA after that vote. The Government have responded that they agree with the need for an evaluation but have not been precise about what form that evaluation may take. Perhaps the Minister can help us further with that this afternoon.

After the 2004 north-east local referendum, the Electoral Commission asked the then Government to make changes to the legislative framework for referendums. The committee was sympathetic to many of its proposals and recommended that the Government should take steps to ensure that they were implemented. We therefore welcome the inclusion by the coalition Government of three of these proposals in the current Bill. First, the creation of a statutory regional counting officer role; secondly, the Electoral Commission being given powers to promote public awareness of the registration and voting process at a referendum; and, thirdly, aggregation of spending limits for permitted participants to bring them into line with the rules of spending by third parties in a conventional election.

The Government have also agreed in their response to the committee to give consideration to the further proposal for what we would like to see—a generic code of conduct for referendums, again under the PPERA. However, once again the Government have not been specific about what form that consideration will take.

Beyond the overall organisation and conduct of referendums, our report also discusses other important practical issues concerning the timing of referendums and how information is to be provided to voters during campaigns. Perhaps the most significant is the vital question of deciding a referendum question. At present this is entirely in the hands of the Government, who are not obliged to take account of advice from the Electoral Commission. The committee recommends that, to ensure neutrality, the Electoral Commission should in future be given statutory responsibility to formulate referendum questions, which would then be presented to Parliament for approval. The Government disagree and prefer to continue to make the final decision while taking account of comments on intelligibility from the commission. No doubt this is happening now in the light of the Electoral Commission’s recent report on the problems that it has already encountered with the proposed question on AV.

The timing of referendum campaigns and votes also, naturally, raises tricky issues. Should referendums be held on the same day as other polls? We first decided that referendums should certainly not be held on the same day as a general election and that where there was a potential clash with other elections there should be a presumption against holding referendums on the same day. We concluded that this should be judged on a case-by-case basis by the Electoral Commission. The Government share our view that it should be judged on a case-by-case basis but see no reason in principle why referendums cannot be held on the same day as other polls. The Government’s response states that where it is proposed to combine a referendum with other polls—as will be the case in the proposed referendum next May—they will work closely with the Electoral Commission to ensure that any practical risks are managed.

The House and the Minister will be aware of the widespread concerns about this expressed by Members of the other place at the Second Reading of the Parliamentary Voting System and Constituencies Bill, and I imagine the same issues will be raised here today. At that time, the Deputy Prime Minister, responding to the debate, seemed sympathetic to some of the points raised. I ask the Minister to tell your Lordships whether any progress has been made on this subject, whether the Government have had discussions with the Electoral Commission about the problem and whether practical risks and ways of managing them have been identified.

A proper understanding of the question being asked and clarity about the nature of the poll are essential to a successful referendum. This in turn must depend on the quality of information that voters have received. The Constitution Committee was not happy about the effectiveness of the regulation of information provision in UK referendums and has commended the system used in New Zealand in its 1992-93 electoral reform referendums. There, a totally independent body provided information and ran the public education process. The Government’s response to this is not terribly forthcoming and states in a slightly anodyne way that it is important that voters are able to make an informed choice in any referendum and that the process for achieving this will depend on the subject matter of the poll. What steps will the Government take to ensure that voters are able to make an informed and objective choice? I remain of the opinion that there is a strong case for an independent information body in any UK referendum.

Part of the concern about information ties in with concerns about funding referendum campaigns. The committee heard from several witnesses who felt that their campaigns, particularly in local referendums, had suffered through lack of money. Some complained of the unfairness of small organisations having to compete with others which were awash with private donations, although it must be said that most witnesses felt that the PPERA, if properly followed, would iron outmost inequalities. There was other evidence suggesting that the loopholes, even under the new Act, might be exploited. The committee therefore recommends that the Government adopt some of the points raised by the EC, which has decided to make its regulations on funding more transparent.

In conclusion, I shall quote directly from the Constitution Committee’s summary of its most important findings:

“Referendums are not a panacea … Referendums may become a part of the UK’s democratic and constitutional framework. There has been little consistency in their use. They have taken place on an ad hoc basis, frequently as a tactical device rather than on the basis of constitutional principle. Notwithstanding this, we acknowledge arguments that, if referendums are to be used, they are most appropriately used in relation to fundamental constitutional issues. There are difficulties in defining what constitutes a ‘fundamental constitutional issue’ … there is a grey area where the importance of issues is a matter of political judgment. To leave such judgments entirely in the hands of the government of the day is in our view inappropriate. Parliament should decide whether or not a referendum is appropriate”.

I hope that the House will accept that the committee has attempted a dispassionate and comparative review of what has now become a topical and controversial issue in UK politics. I look forward very much to the debate and to the Minister’s reply. I beg to move.