Referendums: Constitution Committee Report

Lord Hannay of Chiswick Excerpts

Tuesday 12th October 2010 Lords Chamber

[Lord Hannay of Chiswick]

My Lords, no one could possibly suggest that this debate, and the report on referendums in the UK that we are considering, are not topical and urgent. For that reason, we owe a debt of gratitude to the Constitution Committee under its two successive chairmen, the noble Lord, Lord Goodlad, and the noble Baroness, Lady Jay. In this Session of Parliament, we are being asked by the coalition Government to approve two major pieces of constitutional legislation that provide for the holding of referendums—legislation on the UK method of voting and that dealing with further transfers of powers to the European Union. By the time this Session is over, we may well have taken two major steps towards embedding referendums in our constitutional practice. As this report recognises, that could have seriously negative consequences, as well as some, at least, of the advantages that their protagonists will advance. Today’s debate provides an opportunity to go in some depth into the wider arguments for and against the use of referendums, which should assist our future debates on the specific measures being put forward.

My main criticism of this otherwise excellent report is that it confines its scope to referendums in this country, although there is the odd reference to the use of referendums elsewhere—in Switzerland, for example. In this debate, many of the participants have ranged much more widely, and they have been right to do so. Limiting the report damagingly narrows the field of inquiry and excludes a number of examples that could usefully underpin the arguments deployed for and against—mainly against—the use of referendums. Is it not relevant, for example, that the German constitution makes no provision at all for holding referendums in the light of that country’s disastrous experience with plebiscitary democracy in the inter-war period? Should we not be paying some attention to France’s experience, in the referendum that General de Gaulle lost and the EU referendum of 2005 on the constitutional treaty? Both were simply votes about individuals. They were nothing whatever to do with the subject on the order paper. The loss of the constitutional treaty was merely a reaction to the unpopularity of President Chirac. Then there is the recent Turkish example mentioned by a previous speaker. All the evidence points towards the vote having been more about the AK Party’s popularity and a precursor of next year’s general election than a considered view of the actual constitutional changes being proposed. One might also cite the Greek Cypriot referendum of 2004, when the country’s president exhorted his people to vote no to emulate the heroic Greek response to Mussolini’s ultimatum in 1940. That list is not exhaustive, but it illustrates just how real are what the report calls the “significant drawbacks” to having referendums.

The main thrust of the significant drawbacks is to undermine the crucial contention by the supporters of referendums that they are in some way a superior form of democracy—a test superior to the system of representative parliamentary democracy, for which our ancestors fought and in some cases died. But how on earth can referendums seriously be considered as a superior form of democracy if fewer people turn out to vote than in general elections, if their votes are cast without fully addressing the issues at stake and if, indeed, they are cast more to register a view on the Government of the day who are asking the question than to provide an answer to the question itself? But if the superior test criterion cannot be answered convincingly, what are you left with? It is just another electoral gimmick with uncertain consequences for our constitutional evolution and, possibly, damaging side effects. That is the sort of analysis that would get any new medical prescription banned or at least substantially delayed.

So much for the significant drawback side of the ledger. How about the plus side of it? Many considerations on that side seem to teeter between the threadbare and the counterintuitive. Can it realistically be maintained that a referendum settles a contentious issue once and for all? The 1975 referendum on our European membership certainly did not do that. Within a few years of that decisive two-thirds/one-third vote, one of our two main parties was campaigning to withdraw. Did the referendum vote on Scottish devolution deter the Scottish National Party from pressing for independence? Evidently not. Should the vote in next year’s proposed referendum on our voting system produce a very low turnout, as it quite possibly may do, will that not feed the controversy rather than settle it?

Then there is the argument that frequent use of referendums and our system of representative parliamentary democracy can happily live side by side, indeed can strengthen each other. I find that totally unconvincing. Once we start to make regular use of referendums, there will be demands for more of them. More single-issue causes will demand that they, too, should have their day in court. We can already see that in the Welsh claims that their future is more important and more worthy of referendum treatment than our adjustments to EU treaty law; such demands will become steadily more difficult to resist. Little by little, the legitimacy of the system of representative parliamentary democracy will be challenged and leached away. Is that something we can happily contemplate?

I hope that the Minister will be able to respond to some of these concerns when he replies. He and I voted in the same Lobby when we resisted the demand for a referendum on the Lisbon treaty, so I imagine that he is not totally insensitive to them. These concerns are, in any case at least, nothing to do with the subject matter of next year's referendum on the voting system. I will vote yes, for the alternative vote—although I would like it to be made properly proportional—but how much better if that were to be done by an Act of Parliament, just as every change to the franchise, from the Great Reform Act 1832 onwards, was carried forward.