European Union Referendum Bill

Lord Norton of Louth Excerpts

Tuesday 13th October 2015 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I wish to speak briefly on changes made to the Bill and what is omitted. I do not propose to follow some noble Lords who have begun to fight the referendum campaign.

My starting point is one of scepticism in regard to the principle of referendums, but an acceptance that successive Governments have utilised them and that they are therefore part of our constitutional arrangements. What we are faced with is not the ideal, but it is the real.

We have rarely discussed the principle of referendums. A dislike of referendums is set aside when someone prioritises a particular issue of policy and sees a referendum as a way of achieving an outcome that otherwise may not be achieved. Governments have employed them on a disparate and discrete basis, with no set framework for determining their use. The Bill before us can be justified on the grounds that it addresses a fundamental part of our constitutional arrangements and derives from precedent. As with the 1975 referendum, it is grounded in a manifesto commitment. However, it is not set within a clear, intellectually coherent approach to constitutional change. The danger is that we are developing a new constitutional framework without thinking through the consequences.

I turn to the specifics of the Bill. As introduced, it reproduced a problem of the 1975 referendum and, indeed, later referendums, but one that has now been corrected, but introduces a problem not present in 1975. As my noble friend Lady Anelay pointed out in introducing the Bill, the Bill as initially introduced stipulated a yes or no response. When the then Political Parties, Elections and Referendums Bill was going through this House, I drew attention to the bias involved in inviting a yes or no response. There is a natural tendency to want to appear positive, so there is a bias in favour of a yes response regardless of the question. Some referendums have, as we know, resulted in a no victory, sometimes a substantial victory, but that outcome might have been even greater had the burden of the question been reversed or electors offered a choice between two mutually exclusive statements.

The Electoral Commission previously favoured a yes/no question because of the ease of campaigning—one could have a vote yes and a vote no campaign. It has now changed its position, having undertaken consultation and research, and favours two statements. I welcome the change and the Government’s acceptance of the Electoral Commission’s recommendation. Subsequent surveys have shown that having a choice of statements, as opposed to a statement inviting a yes/no response, does affect how people vote. My concern is not with what their response is, but that the process itself is as neutral as possible. I therefore commend Clause 1(5), in the form it which it reaches us.

I turn to the problem not present in 1975. On that occasion, electors were invited to vote on the basis of the terms of membership renegotiated by the Government. The ballot question was preceded by the statement stipulated in the Referendum Act:

“The Government have announced the results of the renegotiation of the United Kingdom’s terms of membership of the European Community”.

The terms were known. There was a gap of almost three months between negotiations being completed and the referendum taking place. For the referendum provided for in this Bill, it is expected that electors will be invited to make a decision based on the Government’s negotiations. Nothing about the negotiations appears on the face of the Bill and it is not clear as to the relationship between the date of the referendum and the stage at which negotiations are completed and, indeed, what form completion takes. In the event of a vote to remain in the EU with negotiations incomplete, what obligations remain with the Government?

Other issues to be addressed, in my view, are whether there should be a threshold requirement, similar to that imposed in the 1979 referendums, and whether it should be a binding referendum, as with the 2011 referendum on the electoral system, or whether it should be advisory, as has been the norm. There is clearly a case for considering a threshold, given the significance of the issue, and especially so should we decide that the outcome should be binding. An advisory referendum gives Parliament the opportunity to take into account turnout in considering whether to legislate in line with how electors have voted. I assume that there will be a reasonably high turnout, but that is not certain. Perhaps my noble friend Lady Anelay can share with us the Government’s expectation as to turnout, and whether they are minded to accept that a threshold is desirable, and if not, why not.

The House of Commons has passed this Bill. It is not our task to challenge the principle. The Commons has also approved, after discussion, particular provisions, or refused to include particular provisions. We can usefully address those matters that the other place has not considered. It is important to get the Bill right before we begin a referendum campaign. We need to ensure that we focus on the merits on the Bill. There is still work to be done, and it is important that this House plays to its strengths.