Referendums: Constitution Committee Report

Lord Inglewood Excerpts

Tuesday 12th October 2010 Lords Chamber

[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.