Referendums: Constitution Committee Report

Lord Grenfell Excerpts

Tuesday 12th October 2010 Lords Chamber

[Lord Grenfell]

My Lords, it is a great pleasure to follow the noble Lord, Lord Owen. He has given us much food for thought in his authoritative speech, and from the perspective of these Benches I might say some marching orders as well. I liked what he said about the coalition Government walking into what I would call a heffalump trap by naming the date for the referendum. The other reason I think they have made a mistake is that they do not know how long it will take to get the legislation through, and particularly through this House. We know that a serious lead time is needed before referendums can be held.

I join others in congratulating the noble Lord, Lord Goodlad, and the committee he lately chaired on yet another first-class report. I congratulate also my noble friend Lady Jay on taking over the chairmanship of this important committee and on her very impressive presentation of this report. It is a measure of the interest in it that some 13 out of the 19 participants in the debate are not members of the committee. As one of the 13, I intervene briefly to address only two matters—referendums on constitutional issues, as discussed in chapter 3, and the question of thresholds, addressed in chapter 5.

I have never been a fan of referendums, and I do not believe I am entirely alone in that among noble Lords. For instance, I noted in the published evidence that my noble friend Lady Quin—who I am happy to see in her place and whose speech I enjoyed—has a strong attachment to fully representative democracy. I take much comfort from that. However, that said, I recognise that despite the many negative features of referendums—not least the almost Napoleonic urge of Governments these days to use a direct appeal to the people for tactical advantage—we are coming to accept that referendums, if used sparingly to supplement, not replace, representative democracy, need not necessarily pose a threat to our democratic system. As the committee concluded, they may become a part of the UK’s political and constitutional practice—I rather think they have already—and that adds urgency to the committee’s rider that, where possible, cross-party agreement should be sought as to the circumstances in which it is appropriate for referendums to be held.

The noble Lord, Lord Liddle, gave a masterful lesson on the need to avoid resort to referendums on complex issues such as ratchet clauses and so-called transfers of power in the EU. Not long ago I was spending almost all my waking hours locked in communion with the text of the Lisbon treaty, and the nightmare thoughts of submitting it to a referendum occupied my unconscious hours.

The question that preoccupies me is whether or not referendums should be held on constitutional issues. I read with great care and interest the evidence given to the committee on this point, particularly the evidence given by the Government. The argument in the Government’s memorandum submitted to the committee that referendums should be used,

“only where fundamental change in the constitution of the country is under consideration”,

appears at first glance to be sensible. However, as many members of the committee and my noble friend Lady Jay noted, it begs two questions: what is a fundamental change and who decides that? These questions were so thoroughly examined, both in the published evidence and in the body of the report, that it would be presumptuous of me to go over that ground in the presence this afternoon of so many of those who participated in the proceedings. Instead, I intervene in the debate to express my profound satisfaction that the committee, while recognising the impossibility of defining precisely what is a fundamental constitutional issue, had no difficulty in including the abolition of either House of Parliament in its non-exhaustive list of those it felt most obviously fell within that category. This is a very important conclusion.

As my noble friend Lord Hart of Chilton recalled, my noble friend Lord Wills, in his previous incarnation—he was a thoughtful Minister in the Ministry of Justice—had stoutly defended before the committee his and the then Government’s contention that while a move to an all or mostly elected House could be considered a fundamental change in its composition, the reform as a whole could not be considered of fundamental constitutional importance as it was not intended to involve any change in its powers or functions. Many, including myself, had great difficulty in accepting this contention.

As I have said before in your Lordships’ House, the coalition Government and those on other Benches, including where I sit—but not myself—who are calling for an elected second Chamber are not calling for a simple reform; they are, whether or not they care to admit it, calling for the abolition of this House and its replacement with something entirely different. If that is not a fundamental change of far reaching constitutional importance I do not know what is.

In the debate in this Chamber yesterday, initiated by my noble friend Lord Hunt of Kings Heath, some of us challenged the Government’s repeated assurances that a move to an elected Chamber would not bring about a significant change in the balance of power between the two Houses. For reasons which need no airing in a take-note debate focused on a report on referendums, I remain unconvinced by this assurance and therefore welcome the committee’s conclusion that abolition of either House falls within the definition of a fundamental constitutional issue and is consequently, in my view, one where a referendum should be deemed appropriate for the envisaged so-called reform of the Chamber. I agree with the noble Lord, Lord Norton of Louth, and others when they point out the glaring inconsistency in the Government’s treatment of the proposed move to AV compared to its treatment of Lords reform.

I have no doubt that the abolition of this House and its replacement by an elected Chamber should be submitted to a referendum. The warnings of the noble Lord, Lord Pannick, and those of my noble friend Lord Hart, are well taken, but I do not think the British electorate cannot be helped to understand what is at stake in such a significant constitutional change.

Finally, and briefly, I turn to the matter of thresholds, discussed in paragraphs 180 to 189 of the report. I note that the evidence the committee received was broadly against turnout thresholds and super-majorities; and that it led, after its careful weighing of the advantages and disadvantages, to its conclusion at paragraph 189 that there should be a general assumption against them. However, the committee recognised in that same conclusion—this is worth recalling—that,

“there may be exceptional circumstances in which they may be deemed appropriate”.

This language is obviously an accurate reflection of the committee’s sentiments, but I find it disappointingly weak. There are strong arguments for a voter turnout threshold for referendums on fundamental constitutional changes, as advanced by some of the witnesses. I accept the point made by Professor Butler and others that the no side can defeat a proposal by simply encouraging people to stay at home or to sit on Brighton beach with handkerchiefs on their heads. I accept also the difficulties posed by inaccurate, out-of-date electoral registers—which is not, however, an insoluble problem—but I am not comfortable with the idea that a major constitutional change can be either approved or disapproved on a very low turnout. I am aware of being in a minority in holding this opinion and I have no settled view on where the threshold might be set, but I remain disappointed with the conclusion’s words, “may be deemed appropriate” where I would prefer to see, “would be deemed essential”.

We will be looking again at many of these issues when the Parliamentary Voting System and Constituencies Bill finally reaches this House. In the mean time we have to thank the noble Lord, Lord Goodlad, and members of the committee for the excellent report, which will inform our discussions. They have done this House and the whole of Parliament a great service.