Referendums: Parliamentary Democracy

Lord Higgins Excerpts

Thursday 19th July 2018 Lords Chamber

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[Lord Higgins]

That this House takes note of the impact on parliamentary democracy in the United Kingdom of the use of referendums.

[Lord Higgins (Con)]

My Lords, our debates on Brexit have made frequent reference to referendums, but it seemed to me that the time had come to take a rather wider view of this issue. I am glad to see that a number of noble Lords who have added their names to the speakers list today take a similar view. I look forward with great interest to their comments, particularly the maiden speech from my noble friend Lord Pickles. He will give us a more up-to-date perspective on the view of those in the House of Commons on these issues than some of us who moved from the House of Commons to your Lordships’ House a long while ago.

There is certainly no lack of background briefing on this issue. The House of Lords Library has produced a splendid note, and only this month a massive tome, a report of the Independent Commission on Referendums, was published. In addition, there have been reports by your Lordships’ Constitution Committee and the Public Administration and Constitutional Affairs Committee of the House of Commons. The latter makes a particular study of the results and the effect of the Brexit referendum.

They all draw a certain amount of attention to the history of referendums in this country since 1975. Referendums were used very successfully by Hitler. Both Churchill and Attlee criticised the idea of them and, notably, Mrs Thatcher described referendums as,

“a splendid weapon for demagogues and dictators”.

While that reflected the immediate context of the time, I think there are still considerable concerns about the way in which referendums affect our democratic system. They are certainly popular with the electorate—perhaps to some extent reflecting the unpopularity of politicians —with the idea that they somehow get a direct feed in, even though in this country I believe we have politicians who are less out of touch with the electorate than in almost any other country in the world because of constituency meetings and so on.

I am concerned that the idea of referendums is constantly referred to as democratic. One can see the arguments in favour of that view but, in fact, it is not what we normally mean by democracy in this country. What we fundamentally believe in, I think, is the idea of representative parliamentary democracy where we elect Members of Parliament and, as Burke pointed out, they then take into account the views of their constituents together with their own judgment on any particular issue. One of the problems with referendums is the extent to which a Member of Parliament or a Member of your Lordships’ House can take into account the views which were expressed. This is somewhat inhibited if a major part of a decision—almost a central part of it—is taken by a referendum. It is noticeable that very few Members of Parliament have stood up and simply said that they reject the decision of this or that referendum.

The crucial issue here is whether the referendum is regarded as binding. I took part at great length in the debates in your Lordships’ House on the referendum Bill. What was clear at that time was that it proposed an advisory referendum, not a binding one. It is clear since then that the Government have regarded it as binding. The effect of that on the extent to which Members of Parliament can express an independent view is obviously very important.

The Prime Minister, soon after the result of the referendum, said very clearly we must “respect” it. Respect is a very interesting word. As far as the last referendum is concerned, there are lots of reasons for not respecting it. It was not a representative democracy, passed by an overwhelming majority of the population. It was a majority of those voting but quite clearly a lot of people did not vote because they realised that they did not fully understand the issues. Therefore, the argument that we must respect it also has to be seen against the background of a campaign that was riddled with lies from beginning to end—not least on the question of the Brexit premium. In addition, there is the recent discovery of the extent to which the finances of the leave campaign might have affected the result. To conclude that we must respect the result is very doubtful.

As far as that is concerned, we have to take into account whether it is binding or not. As I say, it is in danger of undermining rather than helping our democratic system. The report that I referred to from the House of Commons points out that critics of referendums warn that they may undermine parliamentary democracy, particularly so when there is a clear difference of view,

“between … a majority of the public and the majority of parliamentarians”.

It points out that this is probably the situation with the Brexit decision. So this, again, must give us some concern that referendums do not really help the operation of our democratic system—in fact, quite the contrary. I conclude from that that there are some serious problems that we have to face if we are to continue with the use of referendums, and there is a very strong case for the committees of both Houses to look at the issue in great detail.

One thing I am absolutely clear about is that I do not think there is a case for a second referendum on Brexit. We can do without another one, as it would again produce a very confused result. The right course of action at this stage is for Parliament to assert how the pieces of the chaos that have resulted from the referendum, not least in the last few days, can be put right. Parliament really must assert its influence more strongly over the way in which things develop in the present situation. Therefore, the case for referendums becomes increasingly doubtful. At all events, I think that we need to tighten up the rules.

I was surprised to discover in the briefing the existence of the Political Parties, Elections and Referendums Act, which I had not previously come across—I may not be alone in that. That could perhaps be amended to cover certain issues. I will always regret that during the passage of the referendum Bill through your Lordships’ House, I did not put down an amendment to cover thresholds for both the turnout and the majority. We might have been in a very different situation today had I done so, but I thought that if I did, it would inevitably make the result of the referendum mandatory rather than advisory. None the less, I think that there is a case to be made, perhaps by the relevant committees, for saying that we should not have any referendum in future without thresholds for the turnout and the majority.

I conclude by saying that we certainly need further study by the committees to sort out the present problems that I have referred to. However, I am also influenced by the fact that I spend a considerable amount of my time in the Netherlands, which has had a rather bad experience with a referendum relating to Ukraine. It has been a real problem for the country, so the political coalition in the Netherlands has decided to introduce a measure to ban, flat out, the use of referendums, including advisory referendums. As I said, the difference between advisory and mandatory referendums is very blurred. As I understand it, this had already gone through the lower House of the Parliament in the Netherlands, but there was then a move to have a referendum against having a ban on referendums. This was obviously rather controversial. The result is that there have been further disputes and the matter has gone to the Supreme Court, which has come to the conclusion that you cannot have a referendum banning the use of referendums. That, as I understand it, is the present situation and we will have to wait to see what any appeal against the Supreme Court decision brings.

That brings out the important point that we should consider to what extent the use of referendums in our country undermines the normal representative parliamentary system, in which we have such faith and which I think is unequalled in the world, not least in protecting minorities. One of the great problems with referendums is that they take no account whatever of minorities. They have been described as the dictatorship of the majority, and I think that that is indeed the position, not least as far as the latest referendum is concerned.

I believe that we should consider all these issues very carefully and I hope that the debate will seek to clarify them further. Given the amount of interest in this issue by way of background papers and so on, this is clearly an appropriate moment for us to consider to what extent we should continue to use referendums and, if we do, in what form. I beg to move.

[Baroness Stedman-Scott (Con)]

My Lords, time is very tight in this debate, and I respectfully ask all noble Lords to comply with their speaking times.

--- Later in debate ---

[Lord Higgins]

My Lords, I was delighted and surprised to be fortunate in the Motions ballot. I am glad that my choice of subject produced a debate of such exceptional quality, even by your Lordships’ high standards, particularly with two outstanding maiden speeches from my noble friend Lord Pickles and the noble Lord, Lord Anderson of Ipswich.

The Minister’s reply is very important. What has come out very clearly is that our experience of referendums, since they started and more recently, shows that there are a great many lessons to be learned and mistakes to be avoided. As my noble friend on the Front Bench just said, it is worth considering all the points made today and then seek to codify them to some extent, so when we next come to consider whether we should have a referendum and how it should be carried though it will be precisely on that rule book.

In that sense, I hope that this will be a memorable debate. I am most grateful for all the kind remarks that colleagues have made about me. I am very glad that this has been a debate that should have value in future, as well as reflecting what has happened in the past.

Motion agreed.