Brexit: People’s Vote

Lord Trevethin and Oaksey Excerpts

Thursday 25th October 2018 Lords Chamber

[Lord Trevethin and Oaksey (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord Marks. I do not wish to take one side or the other in this debate; I shall limit my remarks to a few short observations about the statutory and regulatory context in which a second referendum would take place, subject to major revising primary legislation. Very little has been said about that so far. The governing Act is the Political Parties Elections and Referendums Act 2000, which contains a set of provisions which are clearly designed to achieve fairness in the referendal process. It seems obvious to me that it would be unsafe to ignore those provisions in the course of any attempt to achieve a second referendum, because it would be very dangerous to give the impression that the process was in any way being accelerated or rigged to achieve the outcome which, it may be fair to say, the political class would, generally speaking, wish.

Along with the Roadmap to a People’s Vote, which is an interesting document, I commend to your Lordships another document, which is quite bulky. That is the Electoral Commission’s report on the 2016 referendum. It contains a lot of constructive material, which time does not permit me to refer to. It reminds one of the course of events in 2015-16. It took, give or take, about nine months for the referendum Bill to move from introduction in the Commons to completion. By completion, I do not mean Royal Assent, I mean the passing of three essential regulations before the referendum could take place. There was then a further three-month period in the spring of 2016 before the referendum could take place.

During that entire period, the Electoral Commission played a critical role, and it seems to me that it would have to play much the same role in any second referendum. First, it was under a statutory obligation to comment on the intelligibility of the referendum question. It did so in 2015 in a way which led to the question being changed from one in clearly leading form to one in an acceptably binary form. That task may well be much more demanding if there is to be a second referendum. I have not yet heard any clear formulation of the issue—or issues, perhaps—that would be presented to the voters at a second referendum. That would have to take place, and the Electoral Commission’s role as an objective, non-party body, is clearly critical.

Following the completion of the legislation, the Electoral Commission played an important role in registering permitted participants and designating lead campaigners. All of that takes time. That has led the Electoral Commission to make what seems to me a significant recommendation. Recommendation 2 states:

“Referendum legislation should be clear at least six months before it is required to be implemented or complied with”.


By “should be clear”, it explains that that means that the legislation, including any secondary legislation, should be in place six months before the referendum is held.

It would be unwise and perhaps constitutionally improper to attempt to sweep aside those procedural protections if there is to be a second referendum. That would suggest that the suggested date for the second referendum of May next year is hopelessly optimistic. We are nowhere near a position in which we can begin to formulate the issues. Anyone who campaigns for a second referendum—I fully understand why that campaign is being undertaken—needs to address the matters to which I have referred.