Parliamentary Voting System and Constituencies Bill

Lord Howarth of Newport Excerpts

Monday 20th December 2010 Lords Chamber

[Lord Lamont of Lerwick]

My Lords, I had not intended to speak on this because, as the noble Lord, Lord Williamson, said, it appeared on the face of it that this was not about thresholds precisely, but a different issue. But the noble Lord, Lord Elystan-Morgan, has demonstrated the connection between the amendment moved by the noble Baroness and the issue of thresholds. Because I spoke last week, I certainly will not go over the arguments, but I want to comment on two points made by my noble friend Lord Strathclyde in reply to that debate. He argued that if you have a threshold relating to turnout, that just encourages people to abstain. He repeated the argument several times, saying that people will think that all they need to do is to abstain and the referendum will be rejected, but my noble friend Lord Lawson pointed out that that is not necessarily how it would go. It might well go in the other direction. He pointed out that, for example, there would be people who were against change but who believed that the threshold will be met and therefore will have an added inducement to vote. That is one category of people who would have an inducement to vote. Secondly, there could be a group of people who are in favour but know that if they do not vote, they may lose the issue. So it can work in several ways.

I made the point that in 1979, when we did have a threshold, the turnout then was 63 per cent—very high, even though there was a threshold—and that when the subsequent referendum was held without a threshold, the turnout was actually lower at 60 per cent. So in the particular case of the referendums in Scotland, when we did have thresholds, the turnout was higher. The noble Lord may say that that was an outcome threshold not a turnout threshold—and that is true—but I would argue that the effects of the threshold there are also ambiguous. If the noble Lord thinks that an outcome threshold that is something like the Cunningham amendment, with 40 per cent of the electorate required to vote yes, would encourage a high turnout, why do we not have that kind of threshold rather than a turnout threshold? The argument that a threshold encourages abstention is not very persuasive.

The second point made by the noble Lord in reply to the noble and learned Lord, Lord Falconer, was that the Labour Government had been elected by only 21.6 per cent in 2005. If that did for them and the noble and learned Lord was happy with that, why was he not happy with 21.5 per cent in a referendum?

A referendum is different from a general election. In a general election, Members of Parliament are up for election and may be up for re-election; a constitutional change is likely to be permanent and difficult to reverse. Secondly, even with 21.6 per cent in 2005, the turnout threshold put forward in the amendments would have been met anyway. There is obviously a difference between 21.6 per cent when at least three parties, and possibly four or five, are standing, and 21.6 per cent in relation to a yes/no proposition. Neither of the arguments the noble Lord puts forward against thresholds is persuasive.

I do not know whether or not we will have to vote on this but, on the point made by the noble Lord, Lord Elystan-Morgan, to the noble Lord, Lord Roberts, that we did not have thresholds in previous referenda, although we did have one in relation to the Scottish referendum, one cannot think of a country in Europe that does not have a qualified majority provision for changes in the constitution. I shall be interested in what my noble friend says in reply to these points.

[Lord Howarth of Newport]

My Lords, in tabling her amendment, my noble friend Lady Hayter has done two useful things. First, she has reminded us that in legislating, particularly on constitutional matters, we should be sensitive to sentiment in the different nations of the United Kingdom. We needed to be sensitive to that sentiment 10 years ago, which is why we brought in devolution; and, in the context of devolution, and after 10 years’ experience of it, it is all the more important that we should be so. However, the legislation proposed by the Government fails to be sensitive in that important regard. Under their model, a majority in the United Kingdom as a whole would trump a no vote within one of its constituent countries. In that way we risk alienating national opinion and national sentiment in whatever part of the country it was—it might be Wales or Scotland—that found its wishes thus crudely overruled.

The second important thing that my noble friend’s amendment does is to underline that whatever the result of the referendum and however the procedures might be amended in this legislation, if we then went on to have a referendum under whatever set of rules, the result is liable to be divisive. It would be divisive in the case of a particular country of the United Kingdom having its wishes on the electoral system overruled; and, equally, under my noble friend’s amendment, it would be divisive because what she proposes would mean that where there was a no vote in any individual part of the United Kingdom, that would trump the yes vote across the wider United Kingdom and invalidate yes votes in other parts of the United Kingdom. That cannot be a happy outcome either.

A third way in which it would be possible to go, although it is not proposed in the amendment, is for each of the constituent countries of the United Kingdom to determine its own electoral system. In those parts of the kingdom that voted for AV, general elections would in future be conducted on the basis of AV; in those parts which preferred first past the post, they would continue to elect their Members of Parliament on the basis of first past the post. The noble Lord, Lord Strathclyde, smiles at the evident fatuity of such a scheme, yet I do not know whether he entirely rules out the possibility of two classes of Member coming to this House of Parliament, some elected, some appointed, because he very wisely does not show his hand and delays doing so for as long as he can.

The only circumstance in which a referendum on the voting system would not be divisive and set parts of the United Kingdom at odds with each other would be the eventuality of every part of the United Kingdom voting the same way, either for AV or first past the post. It is reasonable to think that that is rather an unlikely outcome.

[Lord Wills]

I am very interested in the case that my noble friend is making, but is he not worried that his third-way proposal might undermine the integrity of the Parliament of the United Kingdom?

[Lord Howarth of Newport]

I am worried precisely about that. That is why I set it up as an Aunt Sally, because it would be an alternative. It would have at least the virtue of being respectful of political sentiment, public opinion and the way people had voted in the individual parts of the United Kingdom. But it would be an absurd arrangement for us to alight upon.

[Baroness Liddell of Coatdyke]

My noble friend makes a serious and important point, but he, like me, will be aware that in the second part of this legislation we will be considering a system of parliamentary inquiries that will mean that, in different parts of the country, the setting of parliamentary constituencies will be different. Parliamentary constituencies for the Scottish Parliament will still have access to the inquiry system, whereas parliamentary constituencies for Westminster, if the legislation is carried, will not. Random mixtures of parliamentary rules for election to the other place are therefore not inconceivable.

[Lord Howarth of Newport]

My noble friend is absolutely right. This legislation is fraught with potential to divide and disintegrate the United Kingdom. I am conscious of that particularly as someone who had the honour of representing a Welsh constituency, because the proposals in Part 2 as they would affect Wales are particularly traumatic.

[Lord Tebbit]

While the noble Lord is going through his catalogue of anomalies, I am sure that he will not have forgotten that there have been occasions when the voters of Wales and of Scotland have imposed a Labour Government on England, which has voted Conservative. I am not sure whether he is agitated about that, wants to change it or just regards it as another of the glorious anomalies of our constitution.

[Lord Howarth of Newport]

I am a believer in the United Kingdom and I think that the noble Lord is also. I am sure that he will be generous enough to acknowledge that the results of elections in which that has occurred have been beneficent for the country as a whole.

The amendment of my noble friend Lady Hayter is an ingenious way to introduce another version of a threshold, which is that there would have to be a majority in each constituent part of the United Kingdom. I would like there to be a threshold, but I do not think that this is the right way to introduce it.

[Lord McAvoy]

I, too, am grateful to my noble friend Lady Hayter for moving the amendment, because it raises as a serious issue—I hope that it is treated by the House accordingly—the cohesiveness of the United Kingdom. Speaking as a former Member of Parliament representing a Scottish constituency, I would not claim any great authority but I was representative for the area that I came from and embody in this place a particular opinion about Scotland’s place in the United Kingdom, which we value a lot. To move to a semi-federal system where one nation imposed its will on another on a constitutional matter would raise issues and give manna from heaven to the nationalists and separatists who would divide up the United Kingdom.

Naturally, there have been a lot of contributions about referenda and thresholds. The noble Lord, Lord Tebbit, mentioned the 1975 referendum and how he voted one way and then changed his mind some years later. He voted yes in 1975, he tells us, and says that he has changed his mind since. I voted no in 1975 and I am still not yet totally convinced that I was wrong, so there is a twist in that as well.

--- Later in debate ---

[Lord Howarth of Newport]

Since we debated thresholds last Wednesday, I have had the opportunity to read the Government’s Localism Bill, which they have just published. I was interested to see there evidence that might indicate the beginning of some flexibility in the Government’s view on thresholds in referendums. Perhaps it is just a case of double standards, I do not know. Clause 41 of the Localism Bill is entitled “The required percentage”. It requires that, for a petition for a local referendum to be valid, no less than 5 per cent of registered electors must vote for it. The noble Lord would be entitled to say that a petition is quite a different thing from a referendum, but then we go on to Clause 51, “Voting in and conduct of local referendums”. Here we find that:

“The Secretary of State may by regulations make provision as to the conduct of local referendums”.

The clause goes on to say in subsection (5):

“Regulations under this section may apply or incorporate, with or without modifications or exceptions, any provision of any enactment (whenever passed or made) relating to elections or referendums”.

Do I see in that the kernel of some rethinking on the part of the Government about the possibility of thresholds making sense in referendums? Of course, the Localism Bill deals only with local referendums. If the Government do not believe in thresholds, presumably they ought to be consistent. Will the noble Lord say categorically that, whatever powers the Secretary of State might use—the powers given to him in the Bill are almost universal—to alter the rules on referendums in the local context, the Government will never in any circumstances institute a threshold?