Brexit: Further Referendum

Lord Adonis Excerpts

Thursday 17th January 2019 Lords Chamber

[Lord Adonis (Lab)]

My Lords, the noble Baroness says that the issues she has raised are technical, but they are important. They go to the heart of the conduct of a future referendum and are very far from technical. I hope that the Government and the House—because it is quite clear that Parliament is going to take charge of this process—will take very serious account of what she has said about spending limits, the legitimate sources of funds and the sanctions available either to the Electoral Commission or to whichever commission conducts a referendum. Her points were extremely important and I hope people will pay close attention to what she said.

I commend the noble Lord, Lord Tyler, for raising the issue in the House and for the work that he and his colleagues have done in preparing the Bill. The two Bills are fine as far as they go, but as we move increasingly surely in the direction of the referendum—partly because of the vote of the House of Commons on Tuesday, but also not least because of my party’s movement towards a referendum, which has been significantly accelerated by Jeremy Corbyn’s speech and remarks in Hastings today—it is very important that Parliament should start paying early attention to the rules and principles under which a referendum will be conducted. In the brief time available to me, I want to raise, in telegraphese, 10 issues that need to be considered.

First, it is my view that the vote in any referendum should be extended to 16 and 17 year-olds. The noble Lord, Lord Tyler, said that we should not be moving the goalposts. The goalposts are very uncertain in respect of votes for 16 and 17 year-olds. In the Scottish referendum they had the vote. The Scottish Parliament and the Welsh Assembly have extended the vote to 16 and 17 year-olds for their domestic elections. There is legislation already in the other place for extending the vote to 16 and 17 year-olds in all UK elections. I can tell your Lordships that there is very strong support for the vote among 16 and 17 year-olds, shown both by polls and when you meet them—I do lots of meetings in schools and colleges at the moment—particularly in respect of Brexit, because there is no group whose future is more at stake. It is my view that we should extend the vote to them.

Secondly, there should be automatic registration of all young people in their place of study and not the individual registration that applies at the moment. The Electoral Commission has established that one-quarter of 18 to 24 year-olds are not on the electoral register at the moment, because of the individual registration process. That is democratically unacceptable.

Coming to my third point, the right course is that not only should 16 and 17 year-olds be automatically enrolled, there should be a polling station in all places of study and places where students reside in large numbers. Those three measures between them will significantly extend and boost voter turnout among young people.

My fourth point, which is related, is that whatever polling day is selected—I know that the Bill mentions May but it may not be possible to hold a referendum that quickly—the polling day for a second European referendum should be in term time, to facilitate young people voting. That means, in practice, that it needs to be in either May or October.

Fifthly, there should be only one campaign allowed on each side. We should not go into another referendum with two campaigns on one side, as happened last time. That was an open invitation to breaches of the law and to dodgy practice, because one was a mainstream campaign supported by the Conservative Party and one was supported by all kinds of fringe organisations.

Sixthly, there should be a special commission for the referendum, on the Irish model. We should not be tied to the very cumbersome processes of the existing Electoral Commission. The concept of a special commission chaired by a very senior judge—in this case, it should be a judge of the Supreme Court—works extremely well in that context and we should apply it here.

Seventhly, there was a big problem in the last referendum about social media and electronic campaigning, which was essentially above the law and played a good part in the disinformation and illegality that took place. I suggest two amendments that would deal with this issue. There should be an imprint on all social media and electronic communications, as applies to printed communications at the moment. The second important reform is that there should be a right of appeal by those who identify social media and electronic communications—a lot of which is very rapidly moving— that they believe are inaccurate or breach the law. People should have a right of appeal to the commission that is established and that commission should have, as the noble Baroness, Lady Browning, so correctly said, much stronger powers of enforcement, including significantly greater powers to fine. It must also have the power to move quickly. With great respect to the noble Baroness, one of the criticisms people have of the Electoral Commission is that it has been far too slow-moving in this process. The fact that the massive illegality that took place in the leave campaign during the last referendum has only just come to the attention of the necessary police authorities is a serious criticism of the Electoral Commission. It cannot be allowed to occur in the next referendum.

My final point relates to the question. The Bill proposed by the noble Lord, Lord Tyler, suggests to a straight choice between the Government’s negotiated settlement and the status quo—remaining in the European Union. That may be the appropriate question to put on the ballot paper, but your Lordships are aware that there is a lot of debate over whether there should be a third option of no-deal, or WTO terms. I am open-minded on this issue. There is no technical reason why it cannot be done; preferential voting would make it perfectly possible. After all, people can express a second preference in mayoral elections at the moment—I see no reason why it could not work perfectly legitimately in a referendum.

The issue is not technical. Rather, there are two issues of principle which Parliament will need to consider at the appropriate time. The first is whether a no-deal WTO option is in fact credible, in the sense of whether it could actually be implemented. That is a significant issue, because the proposals put forward by Nigel Farage and others simply could not be implemented. They are not technically possible, and key proposals—particularly with respect to the border in Northern Ireland—would breach the Good Friday agreement and primary legislation.

The second issue that needs to considered is the concern that Parliament will have for the wider social buy-in to the referendum, and the legitimacy it holds. A big issue is whether it will be possible to have a referendum without an option clearly supported by a considerable body of leave opinion, which is true in the case of a hard WTO Brexit. I have not reached a conclusion myself on that issue, but it is clearly technically possible to have a three-option referendum.

The two issues that Parliament will need to consider are whether there is a credible option that it could implement in respect of a hard WTO Brexit, and what it would then do to ensure wide social buy-in. These are very significant issues. They are clearly going to preoccupy Parliament over the coming weeks, and I congratulate the noble Lord, Lord Tyler, on having brought them to the attention of the House.

--- Later in debate ---

[Lord Callanan]

I understand the firm view of the Liberal Democrats on this; they have been dogged in pursuing it. I do not know whether the noble Lord was in the House yesterday, when I addressed the subject in a Question from the noble Lord, Lord Dykes, on opinion polling and whether public opinion has moved. There are clearly lots of different opinion polls around, but yesterday I quoted an analysis of the opinion polling that has been produced—I do not have it in front of me at the moment—which suggests that in fact, if you look at all the polls in the round, there has been no significant change in public opinion on the issue. The public remain deeply divided on the subject—which of course is why we held the referendum in the first place.

[Lord Adonis]

My understanding is that, despite what the Minister just said, work is in fact going on in the Cabinet Office in preparation for a second referendum. Would he care to confirm that that is the case?

[Lord Callanan]

I asked my Permanent Secretary whether any work was going on in DExEU, which is my department, and he confirmed that it is not. He will have to ask Cabinet Office Ministers whether they are doing—

[Lord Adonis]

Since the Minister is not informed about what is going on in the Government for whom he is responsible, could he write to me afterwards to let me know?

[Lord Callanan]

I can tell the noble Lord that it is firm government policy that we will not be holding a further referendum.

The question of how we would hold a second referendum on this matter is therefore entirely hypothetical. However, I have been asked the Question by the noble Lord, Lord Tyler, so I will answer it and elaborate on the process by which we hold referendums. But I reiterate that it is not government policy, and for a good reason.

The practice of holding a referendum is not uncommon in the United Kingdom. Since 1973, there have been 11. In response to the Question of the noble Lord, Lord Tyler, I will set out the process. In the UK, referendums require primary legislation to provide their legal basis: they require an Act of Parliament. The legislation would need to specify details such as the referendum question, the franchise, any amendments to the regulatory framework, conduct rules for the poll, and the date on which the referendum will be held. It would also require a number of other steps, such as question testing, where the Electoral Commission, according to its statutory duty, assesses the intelligibility of the referendum question. There would need to be appropriate poll preparation—the period in which the Electoral Commission and local officials prepare for administering the poll and regulating campaigners—and a regulated referendum period during which regulated campaigning occurs.

This is not a simple process. When considering the practicality of holding a second referendum before March 2019, as both the Prime Minister and the Secretary of State have explained in recent weeks, we cannot have a referendum now in the time available to us before exit.

A number of noble Lords have referred to the UCL report, which I have looked at and discussed with officials, but it remains our view that that timetable is extremely optimistic, given the current state of the numbers in Parliament. For comparison, the previous referendum Act took seven months to pass through Parliament. I remind noble Lords that that was from a Government with a majority in the House of Commons acting on a manifesto commitment, neither of which are the position now. This does not include the time needed adequately to take the other steps; for example, the Electoral Commission recommends that referendum legislation should be clear at least six months before it is required to be implemented or complied with.

We obviously therefore cannot hold a second referendum by March 2019 without a further step, to which noble Lords, including the noble Baroness, Lady Wheeler, referred: extending Article 50. I remind noble Lords that that, too, is not government policy. Aside from prolonging uncertainty for citizens and businesses, such an extension would need the unanimous agreement of the European Council. It is my view, after talking to many officials and other Ministers in Europe, that many commentators in this country are far too blasé about how easily that proposed extension might happen. As I say, it is not government policy and we will not apply for it, but the people who easily assume that it would be granted may be being extremely optimistic.

These calls for a second referendum nearly three years since the clear referendum result are, as the Prime Minister has said—to be fair to the Liberal Democrats, at least they are clear about it—in order to stop Brexit, to move against the clearly expressed will of the people to leave the European Union. Although the Commons voted against the deal on Tuesday, this result tells us nothing about what it does support—nothing about how, or even if, it intends to honour the decision the British people took in a referendum in which the House of Commons invited them to do so.

A second referendum would be a process, not an outcome—a complex and potentially very harmful process at that. I agree wholeheartedly with my noble friend Lord Sherbourne. Seeking a second referendum, and thus second-guessing the clear result of the previous referendum, would be a dangerous precedent to set for our democracy, as he made clear. If we cannot uphold and respect the result of one referendum, what guarantees are there that we can respect and uphold the result of a second? If we were to have a second referendum, and the result of that was also close, why not make it the best of three? By definition, the people who are calling for a rerun of the original referendum do not respect the results of referendums. It is a recipe for years of political and constitutional chaos and fuel for distrust in government, politics and all of us as politicians.

I hope that noble Lords will forgive me if I take a moment to set out the process before and after the 2016 referendum. As I said, Parliament overwhelmingly voted to put the question of the UK’s membership of the EU to the British electorate, allowing them to express a clear view. The simple and clear question was put, and we all know the result. Almost three-quarters of the electorate took part, and Parliament overwhelmingly confirmed the result by voting with a clear majority in both Houses for the European Union (Notification of Withdrawal) Act to empower the Government to begin the process of withdrawing from the European Union.

Let us not forget that at the most recent general election, more than 80% of people voted for parties committed in their manifestos to respecting the leave result. Again, I forgive the Liberal Democrats on this, because at least they were clear in the election what their policy was, and they gained 7% of the vote for their trouble. Parliament subsequently passed the European Union (Withdrawal) Act 2018.

The outcome of the referendum was, therefore, a clear answer to the question, expressing to the Government that a majority of the British public believed that the UK should withdraw from the EU, and we remain committed to respecting the will of the British people and the democratic process which delivered that result. We believe that we cannot compromise the British people’s ability to trust in politics and the Government. We will therefore continue to work to find consensus and deliver a deal and an exit which deliver on the instructions of the British people—whether they voted to leave or to remain.