Parliamentary Voting System and Constituencies Bill

Lord Elystan-Morgan Excerpts

Monday 7th February 2011 Lords Chamber

[Lord Hodgson of Astley Abbotts]

Like my noble friend Lord Blackwell, I have been a loyal supporter of the Government throughout this Bill. However, like him, the amendment gives me cause for concern and I feel there is a lot in what the noble Lord, Lord Rooker, has said. I share my noble friend’s views about the danger of a precedent being created in this way without any threshold.

The noble Lord, Lord Alderdice, argued persuasively that we may not like what the people have said. However, as I understand it, under the amendment of the noble Lord, Lord Rooker, 60 per cent of the people will have said nothing. They will not have said that they are in favour of it; they will just have stayed away. That is hardly an argument for there being the high-level consensus for the change that it is proposed to bring in.

Even with the noble Lord’s amendment, we could have a binding referendum with one in five people voting in favour of it, which seems a perfectly satisfactory threshold. My concern is more about different results from different parts of the United Kingdom, to which he refers. We may have different turnouts in different parts of the United Kingdom because of the nature of the elections that are taking place on the day. We may have low turnouts in one place and high turnouts in another, and large parts of the United Kingdom may feel that they have had a system foisted upon them in circumstances where they have voted against it and there is not the level of consensus required.

For me, the danger of having no minimum to which we can point as giving a level of participation across the country represents a grave danger to the unity of the kingdom, because all parts of the kingdom may not feel that they have been treated fairly.

[Lord Elystan-Morgan]

My Lords, I have, for my sins, tabled Amendments 11 and 15 in relation to a 40 per cent threshold, but I have considerable doubt whether those amendments are in any way superior to this one. The effect of my amendments, if I may so call them, would be completely to nullify the effect of the referendum. It would be as if it had never happened if it was carried by a yes vote but the turnout was under 40 per cent. That would be the end of it, it would be totally expunged.

The effect of the amendment proposed by the noble Lord, Lord Rooker, is very different. It states that the referendum stays. The referendum has no mandatory effect, but it has a consultative effect to which, obviously, the Government of the day would be under considerable moral and legal obligation to pay the highest heed. That is the difference between them.

The beauty of the amendment of the noble Lord, Lord Rooker, is that it gives great flexibility. It enables the Government to take into consideration all the matters which are relevant to its ultimate determination, including the level of turnout. For example, if the turnout was 39 per cent, it seems to me that it would be entirely proper for a Minister to say, “In the circumstances, we see no reason why we should not accept this as, effectively, the will of the people”. On the other hand, if the turnout was 29 per cent, that might be very different. If there were special circumstances in relation to polling day, they, too, would be relevant factors to be taken into account.

The beauty of Amendments 11 and 15, however, is that they give certainty. There would be no question of any dubiety about whether the Government of the day were acting properly and fairly or were in any way tinged by partisan considerations. It would be absolutely certain. It is said that Sir Walter Raleigh, contemplating the axe that would put an end to his life, said, “It is a sharp but certain remedy”. That is what my amendments would be: a sharp and certain remedy, possessing the merit of certitude but lacking any flexibility.

Three questions should be asked about the issue which are relevant to my amendments, and I shall not repeat them if I speak on those amendments. First, how serious would it be if only a derisory turnout supported a yes vote? Secondly, is a 40 per cent turnout threshold the right way to go about it? Is it fair and just? Thirdly, would any alternative in all circumstances be worse?

I start with a proposition which I suppose that everyone in this House will accept: this situation is unique. We have never been this way before. Only one all-UK referendum has been held, in 1975 on the question of whether Britain should depart from the European Union. That was not a mandatory referendum; it was a consultative referendum. I have read the Act again. There is nothing in the Act that says in any way that it is authoritative, so it could only have been consultative. I am sure that that is the correct constitutional judgment in the circumstances.

Therefore, we have the unique situation of an all-UK referendum that is mandatory. How serious would it be if there was a derisory turnout? I believe that that would eat like acid into the very roots of our parliamentary and constitutional system. I do not believe that one can exaggerate what would be the case. There is cynicism abroad already about this House and the other place. That cynicism would be multiplied many times if it were felt that changes had been made that turned only perhaps on a percentage of 10, 15 or 20 per cent.

--- Later in debate ---

[Lord Tyler]

My Lords, does the noble Lord accept that in those circumstances an abstention counts as a no vote and so discourages participation in the whole exercise?

[Lord Elystan-Morgan]

I readily accept that an abstention can count as a no vote. Whether it would in most cases, with great respect to the noble Lord, I do not think anybody can say. I am quite certain that it is wrong to assume that an abstention is always equivalent to a no vote. That is my proposition. I do not think that I have anything useful to add to the matter, save to say that what is at issue is the credibility of the parliamentary system—credibility that would be greatly damaged if some provision of this nature were not resorted to.

[Lord Falconer of Thoroton]

My Lords, this is an important amendment, which goes to the legitimacy of any change to the voting system. First, I do not believe that the stages in the argument are substantially in dispute. The referendum deals with an important constitutional issue and I have not heard anyone say that we should not have a referendum. There are people who object to referendums but, by and large, if our country is having referendums, this is an issue to have one on because it changes the voting system.

Secondly, this is an unusual Bill in so far as a referendum is concerned because it provides for a compulsory referendum, not an advisory one. By that I mean that if the vote is passed, the consequence is not that Parliament would then produce another Act of Parliament, as it did with the Scotland Act and the Wales Act, but that there is automaticity in that the Minister is required to bring forward an order that would automatically, in the light of the vote, give effect to the change in the voting system.

Thirdly, the effect of the provisions is that if, for example, there was a turnout of 25 per cent in the referendum, which no one regards as an outlandish percentage, you could end up with what is regarded by all as a major constitutional change being produced by 12.5 per cent of the country supporting it.

Fourthly, the reason why a referendum is required is that in constitutional change of this importance—and no one disputes its importance—it should be harder rather than easier than normal to effect such a change.

Fifthly, this is a change that has the support of the Liberal Democrats, while the Labour Party is divided on it and the Conservatives are against it. The effect is that it is almost certain that unlike with, for example, the Scotland Bill, the Wales Bill and the European common market in the early 1970s, Parliament would vote in favour of these changes. That means that, if there is no threshold, you have a situation where, far from it being harder to bring about this constitutional change, it may well be easier than it would have been with a normal Act of Parliament.

The noble Lord, Lord Elystan-Morgan, said that if you ended up in a situation where the referendum was passed by 12.5 per cent of the electorate, which would be the position, the legitimacy of the change would be considerably in doubt. I agree with that. It would—I quote the noble Lord—“eat like acid” at its legitimacy and put our voting system in play for whoever next forms the Government. There needs to be some protection to ensure that a major constitutional change such as this is not easier to make than through a normal Act of Parliament.

I am aware of the history of this matter, which is coloured by the threshold that was inserted in the 1978 Bill in the House of Commons. At the Committee stage, there was an interesting debate on that, during which George Cunningham, then the Member of Parliament for Islington South and Finsbury, in a very powerful speech persuaded Parliament that it would be wrong to make such a major change without there being a threshold.