Parliamentary Voting System and Constituencies Bill

Lord Davies of Stamford Excerpts

Monday 7th February 2011 Lords Chamber

Moved by

[Lord Davies of Stamford]

11: Clause 8, page 6, line 21, leave out paragraph (a) and insert—
“( ) over one third of those eligible to vote in the referendum have voted in favour of the answer “Yes”, and”

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[Lord Davies of Stamford]

My Lords, this amendment has been very happily and felicitously overtaken by the House’s decision to adopt Amendment A1 in the name of my noble friend Lord Rooker. I think that it is possible to produce substantive arguments in favour of a threshold before a referendum comes into effect and it is possible to produce another set of arguments in favour of a threshold before a referendum becomes mandatory. However, I suspect that the whole House will be unanimous on this. It would not make any sense whatever to have two thresholds in relation to a referendum. Therefore, I have no intention whatever of asking the House to vote on this or of taking the matter further. I just want to make one comment.

Whatever the substantive arguments for the two types of threshold that I have just outlined, my noble friend Lord Rooker seems to have won the argument in favour of his approach and his amendment. The House of Commons has not yet pronounced on that. It has considered the approach, although not the actual figures, that I suggest for a threshold and it has rejected it. It is right that this House should be very conscious of the views of the elected House on a matter such as this. My noble friend Lord Rooker has come forward with a totally original idea. It was not considered in the other place or by anyone in this place before he ingeniously came forward with it. Therefore, it is with great pleasure that I say that my own amendment ought, in my view, to be eclipsed, overtaken and indeed buried by Amendment A1, and I have no intention of taking it any further.

[The Deputy Speaker]

My Lords, the Woolsack is confused. Amendment proposed—

[Lord Davies of Stamford]

Not moved.

[The Deputy Speaker]

No, my Lords. That is not on. Amendment proposed: in page 6, line 21, leave out paragraph (a) and insert the words printed in the Marshalled List.

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[Lord Lipsey]

I understand why those on the Lib Dem Benches do not rise to their feet to dispute the amendments. But, as one who, on the AV referendum, agrees with them, I shall do and speak for a minute or two. I think that thresholds are a bad idea in referendums. I supported the amendment proposed earlier by the noble Lord, Lord Rooker, because it seems to me that, generally, a pre-legislative vote is a good thing, but I do not support a threshold.

If there is a vote on this, if the threshold proposed by the noble Lord, Lord Davies, is to be reached, it will require 264 Peers to vote in the Content Lobby for it to be carried. If that of the noble Lord, Lord Elystan-Morgan, is to be reached, we will need a total turnout of 316 Peers. And if that of the noble Lord, Lord Grocott, is to be reached—50 per cent, and 25 per cent yes— we need 395 peers to vote with 198 saying yes. I do not see why we should have a different test for the legitimacy of the vote in the country than we have for the legitimacy of the vote in our own House. Thresholds are arbitrary, they introduce bias, they distort debate and they have absurd consequences. I deal very briefly with each of these. As regards them being arbitrary, look at the range of numbers before us. They could be nice round numbers. As Sir Patrick Nairne, chairman of the independent Commission on the Conduct of Referendums, said, the main difficulty in specifying a threshold lies in determining what figure is sufficient to confer legitimacy. There is no answer to that. On the bias aspect, one side has to achieve only one thing—

[Lord Davies of Stamford]

I find that my amendment inadvertently has provoked a rather interesting discussion on this matter. I am listening to my noble friend with great attention. Of course, there is no scientific way of determining what the particular figure might be, but is my noble friend arguing that even if a major constitutional amendment is, say, passed by 6 per cent voting in favour, out of 10 per cent who vote altogether, that that would be an adequate degree of legitimacy justifying constitutional change?

[Lord Lipsey]

It is a good point that my noble friend makes. The answer to it is that that is why I want a pre-legislative referendum, so that the judgment can be made in the light of all the facts after the referendum and not be made in advance in what is necessarily an arbitrary way.

On bias, one side has to achieve only one thing: it has to prevent a majority voting against the change it opposes. However, the yes campaign has to do two things: it has to win more votes and to do better it has to make sure that the turnout is up. This also raises questions about legitimacy of the result. Would the side against which this bias exists really regard a result achieved in this biased way as legitimate? In my view, it would not, although it might rely on a verdict of Parliament after a referendum as a legitimate verdict in the circumstances.

My third point is that the threshold distorts debate. What we want in this referendum is both sides putting their strongest possible case in front of the electorate either for the proposed change or against it—whichever they want. But this case gives the no campaign an incentive to put two different arguments: “Vote no if you must vote, but we’ll get just as many votes if you just don’t bother to turn out”. It is the sit-and-watch-telly no campaign. That does not seem to be a very good idea. The experience of Italy—I will not go into it in great detail—where abstentions are not a vote does not reflect well on this practice. Nor indeed does the consequences of the introduction of the threshold in the first Scottish referendum on devolution, which led to the issue being completely unresolved in fact until the 1997 referendum finally settled it. The referendum did not have the effect that everybody wanted it to have of settling the devolution process.

Finally, my noble friend Lord Grocott has just described one absurd result where two people vote for and one against. I accept that that is an absurd result. But it is no more absurd than the result that would stem—I am sure he was not intending this—from the amendment proposed by the noble Lord, Lord Davies, where 32 per cent vote yes, 1 per cent vote no, and yet the referendum automatically, and without further debate in Parliament, falls. That would be at least as absurd a result as the one my noble friend Lord Grocott predicates.

I have rattled through an argument that deserves more probing and profundity, because the noble Lord, Lord Rooker, came out with a perfectly viable solution to these competing considerations. I was, therefore, very glad to hear that the noble Lord, Lord Davies, was not going to press his views to a vote. However, I think that the House should briefly be exposed to the case against these thresholds as well as the case for them, if only to reinforce itself in its wisdom.

At one stage I thought about abstaining on my noble friend Lord Rooker’s amendment because of my dislike of thresholds, which for once in my entire time in the House of Lords would have affected the result. It is a good thing I did not, so phew. The House of Lords might consider the argument that I have briefly developed and decide that, in view of it, we made a wise decision earlier this afternoon, albeit narrowly.

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[Lord Wallace of Tankerness]

My Lords, we have had another interesting debate on, as the noble Lord, Lord Lipsey, indicated, the difference between the amendments we are discussing here and those which were debated earlier. I only wish that the strength of the argument deployed by the noble Lord against thresholds had been sufficient to persuade everyone to abstention, even if I was unable to do that, but that did not happen.

The manuscript amendment from the noble Lord, Lord Grocott, which would mean that 25 per cent of the electorate would have to vote yes is a reflection of the amendment in the name of the noble Lord, Lord Davies of Stamford, which seeks that 33 per cent of the electorate should vote yes. We then have a straightforward 50 per cent eligibility to vote proposed by the noble Lord, Lord Grocott, and the amendment in the name of the noble Baroness, Lady Hayter, which the noble Lord, Lord Howarth, spoke to, regarding the individual constituent parts of the United Kingdom. I acknowledge also that the noble Baroness, Lady Thornton, did not speak to the amendment in her name and that of the noble Lord, Lord Elystan-Morgan.

I think the arguments against thresholds were put very eloquently by the noble Lord, Lord Lipsey, and are a cogent argument as to why the threshold-against turnout, particularly although not exclusively, does not necessarily lead to fairness compared with a straight situation where people are invited to vote and the majority wins. But the proposals that relate to a threshold that the yes vote has to reach are particularly pernicious. Earlier the noble Lord, Lord Lipsey, referred to the 40 per cent threshold that was imposed on the Scotland and Wales referendums in 1979. The Welsh referendum did not arise because there was a very strong no vote, but although 64 per cent of the electorate turned out in Scotland and a majority voted in favour of devolution, it was not implemented for another 20 years. It did not settle the question. It left, as the noble Lord, Lord Rooker, said earlier, a bad taste. Of all thresholds, it does not satisfy the electorate and particularly those who campaign and those who would seek a yes vote.

The amendment that the noble Lord, Lord Howarth, spoke to on behalf of the noble Baroness, Lady Hayter, would seek a requirement of a majority vote in England, Scotland, Wales and Northern Ireland, rather than a simple majority of all votes taken together. This is a UK-wide referendum on what the electoral system should be to elect the House of Commons in the United Kingdom Parliament. I believe it transcends particular localities or regions. The pros and cons of the system will be debated and considered by people regardless of where they live.

In Committee, the noble Lord, Lord Lipsey, uttered words of caution against this kind of amendment. He said that,

“to seek to set one nation within that kingdom against another kingdom is neither desirable nor wise”. [Official Report, 20/12/10; col. 827.]

The noble and learned Lord, Lord Falconer, rejected this type of amendment because,

“we should do everything to promote coherence in the United Kingdom. That means that, where we are voting on a national voting system, implementation of any referendum should be guided by what the national vote is”.—[Official Report, 20/12/10; cols. 843-4.]

If we were to find, for the sake of argument, that the rest of the United Kingdom—Wales, Northern Ireland and England—had substantially voted in favour of a change yet Scotland had a narrow majority against, it would be unacceptable that that one country with a narrow majority against should effectively exercise a veto over all other parts of the United Kingdom.

Noble Lords who have spoken to their amendments have indicated that they are not going to press them given the vote that was taken earlier. On that basis, I ask the noble Lord, Lord Davies of Stamford, to withdraw his amendment.

[Lord Davies of Stamford]

I beg leave to withdraw the amendment.

Amendment 11 withdrawn.