Referendums: Constitution Committee Report

Lord McNally Excerpts

Tuesday 12th October 2010 Lords Chamber

[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.