Referendums: Constitution Committee Report

Lord Falconer of Thoroton Excerpts

Tuesday 12th October 2010 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, I agree with what the noble Lord, Lord Brooke of Sutton Mandeville, said. We suffer a substantial loss in not having Lord Bingham of Cornhill to debate these issues. He was probably the greatest constitutional lawyer of his generation and he died unseemly early. He would have made a great contribution to these debates and I entirely agree with the noble Lord.

I join other Members of your Lordships’ House in congratulating the committee on its report. The only criticism that I have detected throughout is the fact that there were not sufficient foreign examples. I am glad to say that the noble Lords, Lord Anderson of Swansea and Lord Hannay, have now put that right with their encyclopaedic knowledge of foreign referendums, including those in Greece, Turkey, Cyprus and other countries in which I know that the House has a huge interest. I believe it to be a very good report. It deals with the matter forensically, sets out the evidence and comes to conclusions that it is hard to disagree with.

In this House, we tend to be self-congratulatory; we tell ourselves how good we are on many topics. Very often, we are not that good on every topic, but on constitutional affairs we are good. We have an important role to play and the Constitutional Committee has made a major contribution, over the years that I have been in the House, in informing that debate. This report on referendums is another in that line, and its effect is to make people ask, “Well, why is it wrong”? If it is not wrong, we should be agreeing with it and acting upon it.

I have the most profound sympathy for the gentleman called Mr Mark Harper, whoever he may be. He had the misfortune to sign the Government’s response. I know, from being a Minister, that from time to time you have to sign responses on behalf of the Government. Your problem is generally that you have committed yourself to a particular course of action that the committee’s report rightly identifies to be completely wrong and based on no principles at all. You have two methods by which you can deal with this. Either you say next to nothing—in which case the noble Lord, Lord McNally, would have got up to say it is the most insulting response he has ever seen, as it was so short—or you do what Mr Mark Harper does, which essentially is to fly in the face of the evidence. For example, he says that there is absolutely no evidence whatever that these referendums are done on an ad hoc basis for political purposes when, if you read the report, there are pages and pages of that. The noble Lord, Lord Pannick, set out the evidence, which was overwhelming. Poor Mr Mark Harper; I looked up his previous history and I am happy to tell your Lordships that he ran his own accountancy firm from 2002 to 2006. He cites his interests as being, inter alia: work and pensions, law and order, the USA and Israel. His three interests are: travel, walking the dog and going to the cinema—none of which equipped him for the terrible task with which he found himself.

I congratulate the noble Lord, Lord Goodlad, who has provided leadership for the committee, and the noble Baroness, Lady Jay, who I have absolutely no doubt will continue to provide such good leadership. Our role in this House on constitutional matters is, ultimately, not to initiate major constitutional change but to scrutinise, amend, improve and, in exceptional cases where we foresee disaster or believe that our constitutional values are at risk, to block. The noble and learned Lord, Lord Woolf, referred to the major constitutional changes that I was involved in. What this House did in relation to those was to slow them down dramatically, improve them and then pass them. That is a good model for the way that this House should deal with them.

We now face a major period of constitutional change, led in practice by the Liberal Democrats. The noble Lord, Lord McNally, who is much liked in this House, has a critical role in it. It is none the worse for the fact that it is led by the Liberal Democrats, and I pay tribute here to the support that they provided for the constitutional changes that came through Parliament after 1997—things such as the Human Rights Act, the Freedom of Information Act, the devolution Acts and the reforms to the Lord Chancellor. They supported those consistently throughout and we will, wherever we can, support them consistently.

It is worth pointing out, however, that those constitutional changes emerged from a long process of discussion, led by the noble Lord, Lord Maclennan, and the late Robin Cook, in which both parties were seeking to identify the right and the best changes. The constitutional changes that we are now faced with have not come out of a long process where we were trying to come to the right answer. They have come from five days of shambolic negotiations, in which the prize at the end of the five days was not the best constitutional changes but, in practice, ministerial cars for the Liberal Democrats.

On the changes that we are looking at, the first with which we will be dealing is an alternative vote system. On this side of the House, we supported that system and a referendum in our manifesto. Before the noble Lord, Lord McNally, gets up to point it out, we lost the election but no other party supported that particular proposal—and that proposal is the one which the public are now being asked to vote on in a referendum. That is why the timing of the committee chaired by the noble Lord, Lord Goodlad, as it was, is very apposite. On this side of the House, we agree with almost everything that the committee has said. Perhaps I might highlight some of the points.

Referendums, as the noble Lord, Lord Goodlad, candidly said in his speech, occur on an ad hoc basis for politically driven reasons. I adopt all of the reasons from the noble Lord, Lord Pannick, to destroy the unfortunate Mr Mark Harper’s rejection of that view. The fact that they are ad hoc and politically driven does not mean that they are wrong and I agree with the noble Lord, Lord Owen, in what he said on the utility that they have produced in our country. In Northern Ireland, referendums have also had a beneficial effect. I adopt what my noble friend Lord Wills said in evidence to the committee: that the fact that they are based on politically-driven motivations does not make them bad. They are now accepted as an occasional part of our constitutional furniture and much as the noble Lord, Lord Hannay, may rant away at the effect of referendums, they are here and here to stay. The right course in how to deal with them is exactly as the committee did: to seek to define the circumstances in which they should be used.

When things start, ad hockery is fine but, as time goes on, if no principles are involved then doubt creeps in and confidence in the political system is reduced. I agree with the committee’s approach that major constitutional change will sometimes, if it is not backed by referendums, lack legitimacy. If you use the referendum too much, on the other hand, its abuse and constant use will lead to losing confidence in it as well. In parenthesis, in one of his responses I understand Mr Mark Harper to be saying that it is the Government’s intention to introduce mayors in certain places and get the introduction of the mayor approved subsequently by a referendum. Is that right? Does the noble Lord, Lord McNally, think it a sensible use of the referendum power to introduce the change first, then have it approved by referendum?

We should be careful to set the bar high for the circumstances in which we use referendums. I gratefully adopt paragraph 118 of the report:

“Parliament should judge what issues will be the subject of referendums. In its first report, this Committee stated that it would ‘focus on issues of constitutional significance’ determined by whether an issue raises ‘an important question of principle about a principal part of the constitution’. We believe that this provides a useful test, first, of whether an issue is of fundamental constitutional significance, and second, of whether a referendum is therefore appropriate”.

I say that that is the correct approach. There are circumstances in which referendums are not appropriate. I completely agree with my noble friend Lord Liddle that a referendum was not appropriate either for the Nice treaty, which the Government then led by Tony Blair said would have a referendum, nor for the Lisbon treaty, which the Government led by Gordon Brown said would not. On neither occasion was a referendum appropriate, because they did not satisfy the paragraph 118 test.

On the question of fundamental change to your Lordships’ House, if the change were fundamental—in particular, if you changed the way in which you elect noble Lords—a referendum probably would be appropriate, because that would be a significant change to our constitution.

To allow referendums on a range of local issues, such as excessive council tax increases, would be a dangerous move. I agree with my noble friend Lord Foulkes of Cumnock that that in effect would close yet further the space for good local government, and I would be against the excessive use of referendums in local issues. I am strongly in favour, as are so many noble Lords, of the fact that there are many ways, and more should be developed, to engage the public with their politicians, but that should not include local referendums.

I shall conclude by referring to three particular issues on referendums. First, it must be right that a neutral body should formulate the question. Parliament should definitely approve it, but if we want to have faith in referendums, the question should be formulated by a neutral body such as the Electoral Commission. Why does Mr Mark Harper oppose it?

Secondly, on the timing of the referendum, paragraph 145 of the report makes the case that if the referendum is on the same day as a general election, that will mean that the referendum gets completely swamped. It says that referendums should never be held on the same day as a general election and that there should be a presumption against it being on the day of other elections. The reasoning given in the evidence is that the other elections—the Scottish and Welsh general elections, for example, which will take place on the day—swamp the issue. When there is an election on the same day, the referendum becomes a secondary issue that is inevitably the victim of those other issues. That was the evidence. Will the Minister tell us why Mr Mark Harper rejected that evidence?

Thirdly, the report is generally opposed to supermajorities or voter thresholds, though it says that there is a case for there being a supermajority or a voter threshold where you are dealing with a major constitutional issue. Does the Minister think there is any constitutional issue that is more major than how the first Chamber is elected?

I congratulate the noble Lord, Lord Goodlad, and his committee on an excellent report.