Referendums: Constitution Committee Report

Lord Pannick Excerpts

Tuesday 12th October 2010 Lords Chamber

[Lord Pannick]

My Lords, I want to focus on the Government’s written response to the committee’s report. The Minister, Mr Harper, said that the Government do not share the committee’s concern that referendums in the past have been used as a tactical device in an ad hoc manner. He assured noble Lords and the committee that the Government are committed to the use of referendums as a means of giving people a greater say in politics. The evidence which the committee heard—I declare an interest as a member—clearly established that Mr Harper is simply wrong in his analysis of the past and that the current proposals the Government are putting forward strongly suggest that Mr Harper’s hopes for the future are unlikely to be met.

As to the past, some of the most striking evidence we heard is summarised at paragraphs 37 and 38 of our report. The noble Lord, Lord Goodlad, has already mentioned the evidence of Professor David Butler, of Nuffield College, Oxford, that normally referendums happen only when the Government think they are going to win. It may be that the next referendum will happen only because the Government think that they are going to lose. Steve Richards, the chief political commentator at the Independent newspaper gave similar evidence. He emphasised that the referendum is a tool used by political leaders to suggest that they are giving away powers when in fact they have carefully controlled the circumstances to ensure that they attain the desired result.

None of this should take anyone by surprise. The referendum is a powerful political mechanism and politicians will use it in the way they use all other political mechanisms—to advance their own political agendas. Referendums in the past have simply not been used to give people a greater say in politics— Mr Harper’s aspiration. Indeed, if that had been the case, important social reforms such as the abolition of capital punishment, homosexual law reform and race relations law would have been prevented or at least severely delayed.

Of course, people must be encouraged to have their say on political questions, but decisions on such matters are for Parliament. Parliament has the task not merely of informing itself but also of leading public opinion where appropriate. Its task is not simply to identify what public opinion is and then to follow it.

If we confine our attention to constitutional issues, we see that it is simply not the case that the referendum has been used consistently in the past; it has been used wholly arbitrarily. Major constitutional change has occurred in this country without a referendum: the Parliament Acts of 1911 and 1949, the decision in 1966 to give the right of individual petition to the European Court of Human Rights, the Human Rights Act 1998 and the removal of almost all hereditary Peers from this House in 1999. The committee’s report is surely correct, therefore, in stating at paragraph 96 that the inconsistency in the use of the referendum in this country supports the view that the referendum is at heart,

“a tactical device rather than a matter of high constitutional principle”.

That is the past. As to Mr Harper’s hopes for the future use of the referendum as a means of giving people a greater say in politics, the evidence of this Government’s record so far does not suggest any move away from the tactical use of a referendum as, when and to the degree that it suits the Government. Mr Harper’s letter includes a list of the matters on which they are considering referendums. It does not include their plan to reform this House to introduce a wholly or mainly elected upper Chamber—the noble Baroness, Lady Jay of Paddington, referred to this matter in opening today’s debate. The question inevitably arises why, if the Government are so keen, as Mr Harper tells the committee and the House, on the referendum as a means of giving people a greater say on major constitutional reforms, the public are not to be given such a say on House of Lords reform.

The Government are proposing a referendum on the voting method for elections to the other place, but as your Lordships well know, the Parliamentary Voting System and Constituencies Bill will offer the public a choice only between the present first past the post system and the alternative vote method of election. Any objective exercise to identify the views of the public would include the choice of proportional representation as a means of electing the other place; indeed, it has long been the view of those on the Liberal Democrat Benches that such a system should be adopted.

I, like all your Lordships, have great admiration for the debating skills of the noble Lord, Lord McNally, as well as for all his other qualities, but I am doubtful that even he can persuade noble Lords today that the lack of any present intention to offer a referendum giving a wider choice of voting systems can be consistent with Mr Harper’s assertion that this Government deprecate the use of the referendum as a tactical device.

I hope that the Government will be slow to propose referendums in the future, even on constitutional issues. Complex issues of government are best decided by Parliament, taking full account of the views of all sections of society, of course. I am concerned, like the noble Lord, Lord Rennard, that referendums will inevitably be strongly influenced by the drafting of the question, the power of the press to influence thinking, the popularity of the Government when the referendum occurs and the ability of people to understand the issues that are being posed. The Electoral Commission’s recent report on the proposed referendum on the alternative vote revealed an alarming state of public ignorance on the subject—a matter to which the noble Lord, Lord Hart of Chilton, has already referred.

My point is not to encourage the Government to hold more referendums: it is that the committee was undoubtedly correct to conclude that a referendum is, always has been, and will remain, a political device that a Government will inevitably seek to manipulate to advance their own objectives. When the Government propose a referendum, we should lock the doors and make sure that the political burglar alarms are working.