Referendums: Constitution Committee Report

Lord Hart of Chilton Excerpts

Tuesday 12th October 2010 Lords Chamber

[Lord Hart of Chilton]

My Lords, I straightaway declare an interest as a member of the Constitution Committee and it goes without saying that I agree with its conclusions and reasoning. Yet the Government do not seem to share the committee’s reservations over the use of referendums generally and say that because they are firmly committed to giving people a greater say in politics, they believe referendums are one means of doing that. I therefore wish to add a few observations about the evidence that we received.

Over recent years, almost everybody experienced in politics has been anxious about the public’s disaffection with and lack of trust in politicians and political institutions. There have of course been other periods of our history where disaffection has been just as great, if not greater, so we must always keep a sense of proportion. Nevertheless, I listened carefully to the witnesses from home and abroad who put forward arguments seeking to enhance the democratic process, not just by the use of referendums but by such things as citizen initiatives, citizens’ assemblies and deliberative processes—the latter suggested by the Power commission and its chair, the noble Baroness, Lady Kennedy of The Shaws. In each case, practical difficulties arose when considering the proposals.

The first difficulty involved the relationship of referendums to parliamentary sovereignty and the principles of deliberative parliamentary democracy at Westminster, which include debates, pre-legislative scrutiny and Select Committees with the power to call and cross-examine witnesses—just as we have done. Of course, referendums are not incompatible with parliamentary democracy, but I believe that the latter is much to be preferred as a decision-making forum and that nothing should be done to undermine it.

Secondly, there came the “slippery slope” argument; how do you select the topics on which to give a referendum when there is no written constitution to provide guidelines? Without guidelines, there could be an enormous temptation to use referendums as a populist measure or to avoid facing difficult decisions. There is also a danger of using referendums to entrench legislation and prevent change. I accept that the Government say that the referendums which they have in mind will be exceptional events, but the suggestion that referendums should be used as part of a process of giving people a greater say in politics has a tendency to raise expectation and increase the appetite.

We must remember that the referendum process is expensive: about £120 million a shot, we were told. Except on a few issues, a referendum seems to appeal to an articulate minority, with the majority indifferent. We must also not forget the absent 10 per cent from the electoral register and that, each year, some 10 per cent of the adult population change address. We were told that, depending on the timing of a referendum, between 8 and 18 per cent of eligible voters would be unable to participate. Proportions of them would be significantly higher in metropolitan areas and non-registration would be significantly higher among young people and some ethnic minority groups.

Thirdly, there came a warning from the United States of America about citizen initiatives. The Californian experience was labelled as a device for the sad, the mad and the very rich, who could find a support organisation for anything under the sun. Demands for increased services were matched by a lack of desire to pay the taxes needed to provide them, while scattergun demands have a habit of bringing with them unintended consequences.

Fourthly, there was the deliberative democratic process which, to my mind, had considerable educational merit. Yet it was conceded at once that it was not an alternative to a referendum. It was costly and would only sample the opinion of a few. Nevertheless, it was clear that in-depth explanation and debate informed and changed minds and—interestingly, in the case of the House of Lords reform policy—changed a knee-jerk reaction in favour to fade right away as a priority. Incidentally, my own small-scale, but just as expensive, deliberative exercise sessions with taxi drivers on my way home over the past few years has confirmed that finding.

Our report sets out the evidence for all these proposals. There were widely differing views and there was no unanimity. However, because it seemed likely that referendums would remain in the parliamentary toolkit but there was no agreement on their use, we concluded that they should be used only in relation to fundamental constitutional issues. We listed some, but not on the basis of a definitive list. Even here, though, there were differences of opinion among the witnesses. For example, the noble Lord, Lord Wills, a Minister in the previous Government, thought that a change in composition of the other place would be a fundamental change and would merit a referendum, but a change of composition in your Lordships’ House would not. Since then, of course, there seems to have been a change of heart, but the present Government believe that a referendum is necessary for a change to the voting system while a significant reduction in membership and material changes to parliamentary boundaries do not merit one.

In conclusion, after listening to and reading again the evidence that we received, I have no doubt that neither referendums nor other initiatives constitute a panacea for, or give a restoration of, trust in politics. In my view, the rush to legislate on fixed-term Parliaments and a change in the voting system, without proper consultation or scrutiny, has increased my concern that we have not learnt any lessons on how to handle constitutional reform or re-engage the public. Nor do the focus group responses to the Electoral Commission’s report on the question for the AV referendum give a great deal of hope; most of them did not understand what the first past the post system was, let alone alternative voting. Indeed, the other day I met someone who thought that AV was another form of transmittable disease.

So long as they do not undermine parliamentary democracy, initiatives to educate the public are to be encouraged, but in my view public trust will be restored only when Members in the other place re-engage with their constituents, as the best already do, and reform their own procedural practices, not least by being emboldened to hold the Executive to account. At this very moment when that re-engagement could and should take place, though, constituencies and MPs throughout the country are to be thrown into the melting pot. As the noble Lord, Lord Goodlad, often says, sotto voce, “You couldn’t make it up”.