Referendums: Constitution Committee Report

Lord Desai Excerpts

Tuesday 12th October 2010 Lords Chamber

[Lord Desai]

My Lords, it is a great pleasure to follow the noble Lord, Lord Rodgers. I too join everyone in congratulating my noble friend Lady Jay on having got the chairmanship of the committee and on introducing this debate. Since quite a lot has been already said, I should like to take a different tack. The argument that referendums are imperfect or that they are not a panacea is not news. Nothing is perfect and nothing is a panacea. Even the representative democracy that we have is not a panacea.

The arguments made that decisions taken at referendums are influenced by other extraneous events or variables can be said about any election. When an election takes place in a constituency, people may vote for person X or person Y on no consideration of reading the manifesto or on knowing the policy or whatever the person may have said, but on the colour of his hair or something like that.

I do not think that we can construct an ideal decision-making system and say, “Referendums are not like this; therefore we reject them”. Our difficulty is somewhere else. Not only, as the committee points out, do we not have a written constitution, but we have a particularly highly centralised decision-making system. Despite devolution we are a highly centralised system in which the primacy of the House of Commons allows the party with a majority to more or less dictate when and how it would choose to have a referendum or not. There is nothing that we can do about it.

The argument has been made that the 1975 referendum was to establish peace in the Labour Party. The ruling party had problems and, therefore, it had to have peace established within itself because it wanted to govern for the next three or four years. Things were difficult from the early days for the 1974 to 1979 Government. My noble friend Lord Foulkes said that keeping the Labour Party united was in the national interest and I agree with him.

But let us look at today: the idea that every passerelle has to be put to a referendum is not driven by logic. It is driven by the fact that the Conservative Party is deeply divided on Europe. If it is not divided, the coalition is deeply divided on Europe. When the ruling party is divided it is very convenient not to have to make the decision on the Floor of the House in a Bill, but to have a referendum and give the responsibility to someone else for getting the wrong decision. Then you are out of it, which can be very useful. I do not want to be cynical, but a system which so crucially depends on a cohesive majority in the House of Commons for running the country will need something like this if there is no cohesive majority in the House of Commons. That is not to be sneezed at.

Another point was cogently made by the committee. If we are going to use referendums we should use them for only major constitutional questions. I quite sympathise with that. The committee lists four or five major constitutional topics. During the passage of the regulatory reform Bill a few years ago, the noble Lord, Lord Norton of Louth, added a schedule. The Bill was designed to speed up regulatory reform—cut the red tape and all that. Many noble Lords were suspicious that this way of doing regulatory reform would bypass the legislature and would make major legislative amendments. Therefore, a schedule listed every Act which should not be subject to amendment by the procedure in the Bill. I apologise for forgetting the exact title of the Bill, but I thought that if the noble Lord, Lord Norton, was here, he would tell me. The schedule to that Bill is a good guide to the many different Acts. It is not an acquis communautaire, but almost an acquis Britannique of all the very important Acts. Perhaps we should start with that list of Acts which cannot be touched except by a referendum.

The only argument for having a referendum would be that citizens feel differently from elected representatives. Therefore, citizens’ wishes should be consulted on such a question. But if that is the case we have to have some sort of threshold on participation and on the size of the majority. Some noble Lords will recall the George Cunningham amendment; my noble friend Lord Foulkes very painfully remembers it. It put down a threshold as to participation in the Scottish referendum. It would be entirely proper to do that. Unless participation is above a certain threshold, such as two-thirds of the electorate, and the final weighted average of the majority in the referendum plus the rate of participation is at least above 40 per cent, the referendum should be declared void. There is no point in having a referendum with very low participation and a majority which represents not the people’s wishes at large, but the wishes of only those who have bothered to come out and vote. That may make the wrong decision. If referendums are to be legislated on, we must insist on a threshold condition on every referendum, regardless of how major or minor the decision at stake is.