Referendums: Constitution Committee Report

Lord Foulkes of Cumnock Excerpts

Tuesday 12th October 2010 Lords Chamber

[Lord Foulkes of Cumnock]

My Lords, like the noble Lord, Lord Pannick, I have the greatest respect for the debating skills of the noble Lord, Lord McNally, who is an old friend. I propose to put a few points to him to test them later in the debate. First, as one of the non-members of the committee, like the noble Lord, Lord Rennard, I add my sincere congratulations to the noble Baroness, Lady Jay, and to the members of the committee on a well considered and helpful report. I only wish that I could say the same about the Government's response to the report.

In particular, we in this House should be concerned at the apparent contempt in the Government's response to the report, and in the Bill being discussed today in the House of Commons, for the role of Parliament. The Government seem to be saying that as soon as they decide something, it will happen. What has happened to the phrase “subject to approval by Parliament”? We are told that it will be a five-year Parliament because the Deputy Prime Minister has decided that. He does not say that it is subject to the approval of Parliament, which it is.

Equally, with a referendum, whereas the Electoral Commission very cleverly and carefully says “the proposed referendum”, the Government call it the referendum that is due to take place, not which they hope will take place or is planned. The presumption is that because it has been decided by the Government it will automatically happen, without proper consideration by either House of Parliament, let alone both.

I take two points from the report. First, the committee recommends that,

“cross-party agreement should be sought as to the circumstances in which it is appropriate for referendums to be used”.

That is certainly not in the spirit of the Bill going through the other place. There does not seem to be any cross-party agreement there. The second point is that:

“We recommend that referendums should not be held on the same day as General Elections”.

Following that argument, I presume that that would apply to elections in Scotland, Wales and local government elections in England. I will concentrate on that. The Government's response to having a referendum on the same day as these elections is that it saves money. I have a better suggestion for saving money: do not have a referendum at all. That would save even more money, if that is a main constraint that concerns them.

The Government’s response is full of strange ideas. For example, I take the suggestion of local referendums on council tax increases. That is a populist notion; I do not know whether it comes from the Liberal Democrats or the Tories. It is probably from some old liberal tradition which still exists on the Benches opposite. But it begs lots of questions—and I shall give three. Why not a referendum on a council tax decrease, which has just as much effect in reducing services? That is not being suggested. Why not have referendums on other taxes? And how much will the referendum cost? Will it cost more than the tax increase that might take place? The suggestion begs so many questions that it is manifestly something put in without any great thought at all.

As the noble Lord, Lord Pannick, said, the referendum on the alternative vote offers only that one choice—the simple choice between first past the post and the alternative vote. I make no bones about it. Like many of my colleagues on this side and a great many opposite, I am in favour of first past the post. For the lower House, which produces the Government and from which the Government are decided, it normally results in stable government—although we have an exception at the moment. If we had an elected second Chamber, although that is a separate debate, there would be an argument for electing it by some form of proportional representation so that the revising House was of a different composition, in order to look at the legislation coming from the Government in the lower House. But why are we having this referendum on the alternative vote? Most of us on our side do not want it, most of the Tories do not want it and the Liberal Democrats do not really want it. They want the single transferable vote—proper PR. So why have we got it? The only thing that I can deduce is that it is a Trojan horse, the thin end of the wedge. Once 150 years of tradition in this country of electing the Commons by first past the post is thrown aside and we move to AV and there are problems with it, people could say, “Well, if we’ve done it once, let’s do it again—let’s try the single transferable vote, or the system we have in Scotland”. Once you open the Pandora’s box—I hope noble Lords will excuse me mixing metaphors—you do not know where it will stop.

Finally, I turn to the question of having a referendum on the same day as the elections in Scotland, Wales and local government elections in England. I shall take Scotland as an example and point out to noble Lords the reality of the confusion that it will cause. Of course, the electorate is not stupid—no one is suggesting that. Each person will go in and do their best to understand the system and the whole election campaign. Let us imagine, however, that the elections and a referendum are taking place in Scotland on 5 May next year. People will go in to find two ballot papers for the Scottish Parliament elections—one for first past the post, on which they have to put an X opposite the name of the person whom they want to be their constituency representative. They might see Sarah Boyack in Edinburgh Central—a little propaganda getting in here—and they put an X down next to her name. Then they have another list in which they have to put the numbers one to five against the party that they want to support for the list candidates. So that is quite a complicated thing already. In the run-up to that, there will have been campaigns for the constituency and the list, and people will need to understand that—and it takes some understanding, I assure you. Then they would have a third ballot paper on which the referendum vote would be cast. All that is quite a complicated exercise already. Then we come to the real fly in the ointment: the voting on the referendum will be carried out on a different franchise from that for the Scottish Parliament, as the noble Lord, Lord McNally, said in a reply to me only recently. The referendum will be held on the parliamentary franchise and the vote for the Scottish Parliament will be on the local government franchise, so people will come in and they will be told, “Oh no, you can’t vote that way”, or “Wait a minute, we’ll have to check”—you can imagine the confusion which will take place. I hope that I have illustrated enough and I look forward to the explanation from the noble Lord, Lord McNally, of how this will be dealt with, particularly with the two different franchises.

We will also have two different campaigns running at the same time. The noble Lord, Lord Rennard, says that people will of course understand the different campaigns and vote differently on them, but he also said earlier that Governments carefully choose the times of referendums to get particular outcomes—they want to have it early in this period—so he has already admitted that contamination takes place; in this case, there will be cross-contamination. A referendum might be voted through or voted down not because of the value of the arguments on it as such, but because of people’s other concerns about the Scottish Parliament, the Welsh Assembly or, indeed, what is happening here in Westminster in relation to the coalition Government. It is very stupid and I hope that the Government will think again.

When the Bill comes through the other place, there is an amendment to change the date which, if it does not get through there, will come here. I hope that the coalition Government will seriously consider separating the dates. I made it clear that I do not want the referendum at all and will vote against it if we have that opportunity, but if we are to have it—if that is the will of Parliament, ultimately—then I plead with the Government not to have it on the same day.

Finally, on the gerrymandering Bill—a better title for it than the long title that it has—which is now going through its committee stage in the House of Commons, perhaps I might tell my own Front Bench, and I choose my words carefully here, that if the Government continue to ride roughshod over Parliament and to propose things such as having no appeals or hearings for boundary changes, and if they bring things in which are entirely against the spirit of our democracy, we in opposition should respond in like terms.

--- Later in debate ---

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, I think the whole House will want to send our sympathy to Mr Mark Harper. Not since Mark Antony outsmarted Brutus has such an orator turned his forensic skills on someone. Here we have the noble and learned Lord, Lord Falconer—a professional wordsmith, a Queen’s Counsel, a positive Cicero—turning all his powers on to an accountant. Now he is appealing for sympathy from the House. I am sure that Mark Harper will survive.

It is difficult to respond to a debate like this. I have a well written 15-minute ministerial response that would cover a number of the issues, but it would not catch the flavour of the debate. I will try to do so instead by responding to some of the questions, but I ask for the understanding of the House. In this debate we have covered Northern Ireland, the role of the Lord Chancellor, links between the judiciary and the legislature, Europe, constitutional reform, local government and elected mayors, and devolution in Scotland, Wales and England. In just some of the speeches, I think there was some rehearsing of Second Reading speeches for future legislation. I will try to respond in the context of the report.

The attitude that I have taken to constitutional reform all my political life is that I agree that one should look for consensus where possible. I agree with the noble and learned Lord, Lord Falconer; I still count as one of the most fruitful and useful periods of my political life the time that I spent serving on the Cook/Maclennan committee before the 1997 election, when we hammered out a lot of the ideas that occupied the first period of the Labour Government after that election. We were pleased to give our support to that range of constitutional reforms.

One should look for consensus, however, only if it can be achieved. I have also said in debates in this House that if the Reform Act 1832 had had to wait for consensus, the Member for Old Sarum would probably still be sitting in the House of Commons. Sometimes constitutional reform is carried through by an individual or a Government with a clear idea of what they want to do and the guts and determination to carry their argument through both Houses.

I shall be frank about where I stand on the question of referendums. The noble Baroness, Lady Quin, reminded us where she and I started on this. I was actually in the meeting of the national executive of the Labour Party when Mr Anthony Wedgwood Benn proposed that the party should adopt a referendum on Europe as its policy, and he could not find a seconder for that resolution. That was because most of the parliamentarians sitting around that table expressed the view of referendums that has been expressed many times in this House and, to a certain extent, is reflected in the report—the suspicion that referendums had been used in the past by fascist dictatorships and that they undermine the essential basis of a parliamentary representative democracy. The fact that a year or so later Mr Benn carried his resolution does not negate the point. I suspect that my generation and those who are older probably share the view of the noble and learned Lord, Lord Howe of Aberavon, that referendums are best kept for Welsh opening hours rather than for more serious matters.

On the other hand and to put it into context, a few weeks ago I expressed these views to one of the younger MPs from my parliamentary party. He fiercely, and with a gleam in his eye, denounced me for such views, saying that if we were ever going to reconnect with the people, we must keep an open mind about the use of different kinds of systems for engaging the public. He was firmly of the view that the use of referendums and some of the ideas for involving people that were outlined in the Power report—such as the new schemes for involving and consulting people via the internet—were the new politics and that we must recognise that.

I read the report with great interest but with a feeling that perhaps there is a generational difference in attitudes to such things. Down the corridor there are people who are willing to look at these issues and challenge some of our more small “c” conservative views about the use of referendums. As the noble Lord, Lord Owen, pointed out, they have been used since 1975, not on a national basis, but frequently and sometimes with good benefit. I take the point that was made about the vote in Northern Ireland, which undoubtedly helped to cement the agreement.

I congratulate the noble Lord, Lord Goodlad, and the noble Baroness, Lady Jay, respectively, on the report and on securing time for this debate. It has been an excellent debate—one of those that you are fearful of when it is your job to reply, as you see all the school debating stars coming out for the game. It is a tribute to the committee that, as has been pointed out, so many of those who have spoken today were not members of it. We get used to having debates on reports where virtually all the speakers were from the committee itself. It shows the quality of this report that it has brought out such a varied range of experts in the topics under review. I also say to the noble Baroness, Lady Jay, that I have not found a committee report that has been so much respected by officials and Ministers. This is not a report that has been put on the shelf and forgotten. It has been read and this is reflected in the legislation that is going through Parliament at the other end. It is difficult at the moment to give all the answers because things may be changing even as we speak.

However, I know that there have been responses to the report—for example, on the wording of the question —which would certainly not abdicate responsibility. This is the Government’s policy. Although it seems that there is a superficial attraction to saying “Hand it across to a neutral party”, it is the Government’s view that is being put to the people. However, they took notice of what the committee said. I believe that an amendment has already been tabled in the other place, reflecting the Electoral Commission’s comments on the question. I hope this will produce the desired result of a question that people find acceptable.

[Lord Foulkes of Cumnock]

I am very pleased by what the noble Lord, Lord McNally, has said about taking account of some of the recommendations. Will he specifically address the question of holding the referendum on the same day as the Scottish, Welsh and, in England, local government elections? I think the overwhelming view of this Chamber is that that would be a bad thing. Will the Government take serious note of that?

[Lord McNally]

I am quite sure that the Government will take serious note. One of the things that makes a debate such as this very difficult is the fact that we are talking about legislation that is passing through both Houses. We are talking about legislation which has yet to be debated fully in this House and is at around the midway stage in the other place. I understand that Members have specific criticisms of the ideas. Sometimes they may find to their surprise that the Government are flexible. At other times, as the noble and learned Lord will know from his ministerial experience, the Government will dig in their heels and say, “No, this is the way it’s going to be”. I do not think there is any evidence that the Government are using a steamroller on this. We are listening and consulting.

I saw Mark Harper’s response to the report. To try to get the House at least half on his side, I draw attention to his point that the Government agree that national referendums should be exceptional events, although they do not share the committee’s general concern that such referendums have been used in an ad hoc manner or as a tactical device. With such things it is best to leave it to the academics and historians to take a view. I suspect that local referendums, as somebody pointed out, will be rather expensive and, after a while, irritating. Let us just see how this works out.

I will move on to some of the questions that were specifically asked of me, particularly by the noble Baroness, Lady Jay. She asked whether there would be information provision in the referendum and whether some of it should be independent. Again, the Government have already tabled an amendment to the Bill that will give the Electoral Commission the explicit power to provide information on both first-past-the-post and AV electoral systems. I also think—and this was certainly my experience of the 1975 election—that the two counting systems come together quite effectively. I say to those who preach doom for the coalition after this exercise that the other lesson I learnt was that, although in 1975 the various members of the Cabinet went out to campaign fiercely for their specific points of view, they came back together as an effective Government after the referendum. So that model does work in a referendum.

I have already mentioned that the Government have taken the Electoral Commission’s advice on the wording of the referendum. To the question of who will regulate local referendums, I am given the most helpful response that this matter is being considered. You cannot have better than that. Perhaps more helpfully, on the need for a post-referendum evaluation, about which the noble Baroness, Lady Jay, also asked, we absolutely agree. Indeed, the much maligned Mark Harper also made clear in his response that there would be a proper and full evaluation by the Electoral Commission of the lessons to be learnt from the referendum, and that the Government would take actions following any recommendations that came from that.

I am running out of time to give full responses. I was very interested in the contribution of the noble Lord, Lord Wills. I shall certainly look at the work that he did before leaving office. I told him privately yesterday, and tell him now publicly, that he is a hard act to follow, not least as regards some of the work that he was doing on constitutional reform involving outside bodies and interest groups. I will certainly follow up some of that work.

The noble Lord, Lord Owen, came to the help of the pro-referendum side by illustrating how referendums have helped, if not to settle matters, at least to settle them for a time. He warned about fixing the date, but you cannot win in that regard. If you fix the date, you are considered to be opportunistic; if you do not fix the date, you are considered to be opportunistic. We have settled on the date not, as everyone has said in the debate, because those who want referendums pick only the date when they think they can win. Everybody is telling us that the relevant date will not be a very opportune time on which to hold a referendum on the voting system. We will see. As I say, once the two groups come together to put their arguments, it could be a very interesting and exciting campaign.

If I have missed any major questions, noble Lords can leap up. When I gave my list of things that had been covered in the debate, I missed out the coverage by the noble Lord, Lord Brooke, of the Duckworth Lewis method of scoring at a limited-overs cricket match. I agree with him; I still do not know how it works.

The debate has shown the value of these reports. I agree with the remarks of the noble Baroness, Lady O’Loan, as regards paragraph 94, which sets out the issues for which referendums are most appropriately used. It states:

“To abolish the Monarchy; To leave the European Union; For any of the nations of the UK to secede … To abolish either House of Parliament; To change the electoral system for the House of Commons; To adopt a written constitution; and To change the UK’s system of currency”.

It is not an exhaustive list but it is not a bad one with which to start. We are all indebted to the committee. As I said in the middle of my speech, this report has been closely studied in Whitehall. It is already having an effect on the legislation that is going through the House. We are all indebted to the committee for such a formidable and useful piece of work.