Parliamentary Voting System and Constituencies Bill

Lord Elystan-Morgan Excerpts

Wednesday 16th February 2011 Lords Chamber

[Lord Wallace of Tankerness]

I remember the vote very well. This House voted most emphatically, and the Government have listened.

We also listened on the matter of the date of the referendum and incorporated into the Bill the other famous amendment of the noble Lord, Lord Rooker. On public hearings, we agreed with the spirit of the points made and changed the Bill.

The other place having considered our amendments, two issues remain outstanding. The first is a decision by the other place, in relation to Amendment 1 and subsequent Amendment 8 that were successfully moved in this place—the former on Report and the latter at Third Reading—by the noble Lord, Lord Rooker. As the House will recall, the purpose of those amendments was to make the referendum result not binding, or indicative, should the turnout fall below 40 per cent. The Government resisted the noble Lord’s amendment on principle and because of the practical difficulties that it posed, to which I shall return in a moment. Following that debate on Report, the amendment was carried by 219 votes to 218. At Third Reading, the noble Lord, Lord Rooker, tabled Amendment 8, which sought to remedy some of the defects in his earlier amendment. As I made clear in my response then, the Government appreciated the making-good spirit behind the noble Lord’s amendment, which the Government accepted pending consideration of the whole issue in the other place.

That consideration took place last night. Our colleagues in the other place voted to disagree with the noble Lord’s amendment by 317 votes to 247—a majority of 70—which, I hasten to add, was a majority that comprised not only the coalition parties but Members from the SNP, Plaid Cymru, the SDLP and the Green Party. This House must now decide whether to insist on the amendments that it passed or to accept the message from colleagues in the elected Chamber.

Before we do so, let me return to the key arguments. I acknowledge that we will hear, as we did on Report, some strong and persuasive arguments from those who favour thresholds. I understand why many in the House found those arguments compelling, but I believe that, in the context of this Bill, they are misplaced and I shall do my best to explain why. I understand that, when considering this issue previously, many of your Lordships felt that the proposal of the noble Lord, Lord Rooker, was reasonable because, unlike most turnout thresholds, his proposal would not definitively have prevented the referendum from being implemented if the threshold was not met. Indeed, the noble Lord suggested that his proposal did not even amount to a threshold.

However, I cannot believe that this is quite right. The amendments would make the referendum result indicative, should the turnout fall below 40 per cent, rather than rule out implementation altogether—I hope that that is a fair assessment of it. However, that seems to me to set a threshold for interpretation of the result. In every real sense, it is a threshold. As the Minister in the other place said yesterday, it would mean that when people go to the polls on 5 May, they could not say that they would get what they voted for if the majority favoured changing the system. By definition, there would have to be further consideration of the matter. We would be saying that people might get what they vote for, provided that Parliament does not overrule or disregard the vote. That is a somewhat dispiriting message to give to the public.

One of our objectives in this and other constitutional reform legislation is to bring back into the political process members of the public who have lost faith. People have become disengaged not least because they feel that the process lacks the ability to deliver what they want. I want noble Lords to consider that, if we imposed a threshold which left in any sort of doubt the effect of people’s votes cast, people might well lose faith because they would not know what the outcome would be if the people delivered a majority yes vote.

[Lord Elystan-Morgan]

Will the Minister cast his mind back to the 1975 vote on joining the European Economic Community? That was not a mandatory but an indicative vote. There was no protest then of the nature that he describes, so the argument does not follow.

[Lord Wallace of Tankerness]

My Lords, that vote was not on a threshold. In the one case where there was a threshold, in Scotland in 1979—which I accept involved a different kind of threshold and consequences that were different, but it was nevertheless a threshold—those who of us voted yes felt, for at least the ensuing 18 years until there was a yes vote again in 1997, that we had been cheated. I do not think we treat the electorate well by providing for a situation where they may vote yes but that yes vote may not be translated into action.

--- Later in debate ---

[Lord Phillips of Sudbury]

No; no more. That is quite enough. For those reasons, I will vote against the amendment of the noble Lord, Lord Rooker.

[Lord Elystan-Morgan]

My Lords, the noble and learned Lord, Lord Lloyd of Berwick, speaks from the very heart of reason and common sense when he says that the real role of this House, in a situation such as this, is to invite the House of Commons to think again. That, however, does not mean that that should happen only once. In the circumstances of this case, as has been so clearly shown by the noble Lord, Lord Lawson, the House of Commons has thought twice about the matter and come to totally different conclusions—although in both cases it happened to reject the proposition that we are discussing. In the first instance, the other place voted by 540 votes against and 31 votes for a threshold in the referendum. Last night, the vote against was carried by about 65 per cent to 70 per cent. The curve is clearly pointing in one direction. But be that as it may, one cannot say that the other place is expressing a consistent and monolithic view on the matter. That does not in any way defeat what the noble and learned Lord, Lord Lloyd, is saying, but to some extent it qualifies it in the special circumstances of this case.

One can summarise the issue in this way. We are dealing here, I think, with a balance of risks. The noble and learned Lord, Lord Wallace, is perfectly correct to say that when you invite the public to partake directly in a decision such as this, there is a risk that Parliament could be seen—in some way or other, without intending it—to be spurning that decision. That is a real risk. No one spoke very much about that risk in 1975 when the referendum was indicative or consultative. I have read the Act and there is clearly no suggestion that that referendum would have been mandatory in any way at all.

I urge noble Lords to consider another risk. A derisory turnout would deprive this vote of any sovereignty or realism as an arbitrement of the people. That is a massive risk. It is very unlikely to happen. It does not matter a great deal which of these proposals one chooses; I tabled one myself which might not have been quite as meritorious as the one now before the House. They are insurances against a failure that is unlikely to happen, but which could happen. A person insures his house against fire not because he knows that it is going to be destroyed—unless he has criminal intentions—or because he believes that it is likely to be destroyed. He does so because he considers that there is a slight chance that it could be destroyed. The more one thinks about something, the less likely one is to be prepared to take even the slightest risk. I am sure that that is our attitude to the families we love. Here the risk is small, but it can be covered by a small, modest and reasonable premium.

[Lord Lamont of Lerwick]

My Lords, I voted for the amendment of the noble Lord, Lord Rooker, the first time, and I intend to vote for it again today. It is true that there was a significant majority in the Commons yesterday, but the result disguised the fact that 20 Conservatives voted for the amendment and 25 abstained. The large majority was accounted for to a considerable extent by the nationalists voting in support of the Government.

I was shocked by the brevity and paucity of the debate. Very few Back-Benchers were able to get in. One point that was made—as it was in this House—was that we have not had thresholds in referendums before, with the exception of the first referendum on Scottish devolution. Of course, we have had very few referendums in this country. Although the first was as long ago as the first referendum on Scottish devolution, they are still something of an innovation. I was struck by the argument made by one Conservative Back-Bencher yesterday that perhaps there should always be a threshold in constitutional referendums, as there is in so many countries of the world. My noble friend Lord Strathclyde mentioned that France does not have this threshold, but it is about the only country in Europe that does not. All other major countries do and, as my noble friend Lord Lawson said, the United States has a different sort of threshold via representatives and state legislatures.

The Minister in the Commons—and my noble and learned friend today—said that a threshold would give people an incentive to vote no. First, that cannot be asserted with absolute clarity. One can argue it both ways. A threshold gives a very positive incentive for people to vote yes if they are worried about the turnout. Secondly, somebody who is really against the proposition would have to worry that the threshold might be met; he would have to know what the turnout would have to be if he was really certain about the situation.

Leaving that aside, it is not unjustified or unfair that if there is great apathy, the proposition should fall. That seems common sense and reasonable. The proposition has been put a number of times that there might be a 38:1 vote that falls just short of the 40 per cent threshold. In Germany, there was a referendum with a majority of 10:1, but because the turnout was only 10 per cent the proposition was rejected—and quite right, too. Constitutional change affects us all; it lays down the rules of the game by which politics is conducted and by which we representatives live; and it should be made only when it is clearly the wish of the people that it should happen. There are great dangers in making major constitutional changes which have uncertain consequences. People who are in favour of AV argue that its effects would be this or that, but the truth is that what would happen is highly unpredictable. I do not believe that we should take this leap into the dark unless there is a proven desire for change supported by the British people giving it their full-hearted consent.