Referendums: Parliamentary Democracy

Lord Tyler Excerpts

Thursday 19th July 2018 Lords Chamber

[Lord Tyler (LD)]

My Lords, we have been treated to two most memorable maiden speeches, and I think we will all enjoy in future the contributions from the noble Lords, Lord Anderson of Ipswich and Lord Pickles. We are also hugely indebted to the noble Lord, Lord Higgins, for introducing what must be one of the most topical debates ever to have come before your Lordships’ House. In that connection, we are also extremely grateful to the noble and right reverend Lord, Lord Eames, and his colleagues, who produced this great work. I went to the launch last week and listened with interest to his contribution today, and I shall make some more references to that report in a moment.

The quick answer to the question posed by the noble Lord, Lord Higgins, is that if representative democracy was as effective and democratic as we are entitled to expect in a mature country such as ours, we probably would not need referendums. We need them because it is not, I am afraid, as perfect as we should like. That point was made eloquently and thoroughly by my noble friend Lord Wallace of Saltaire.

The Report of the Independent Commission on Referendums is remarkable for a number of reasons, but its membership deserves some mention. It was high-powered and cross-party, and included important leavers and remainers. I think that Parliament—and government—will have to look carefully at its recommendations. There are 70 of them; I have been through them and ticked the great majority of them enthusiastically. The Minister, having recognised on Tuesday that the present legislation was frankly not fit for purpose—I think I am quoting him fairly from our exchanges—will acknowledge that we will all have to look at this work very carefully. It picks up the point made by the noble Lord, Lord Cormack, just now: we must learn from mistakes. The commission’s report goes through those mistakes with admirable clarity.

The comparisons made by my noble friend Lord Bruce with our previous referendums—in Northern Ireland, which the noble and right reverend Lord, Lord Eames, referred to, and in Scotland—were absolutely critical. That, too, was picked up by the independent commission. I could give many examples from its recommendations, but clearly time is not on our side. However, I will pick one or two, because they are relevant to all the discussions that have taken place in your Lordships’ House this afternoon.

First:

“Referendums are best suited to resolving major constitutional issues, such as those relating to sovereignty. They work best when they are held at the end of a decision-making process to choose between developed alternatives”.


That point was made eloquently by the noble Lord, Lord Wilson. Secondly:

“Any legislation enabling a pre-legislative referendum should set out a process to be followed in the event of a vote for change. If a government does not produce a detailed White Paper on the proposals for change, a second referendum would be triggered when the legislation or treaty implementing the result of the first referendum has passed through the relevant parliament or assembly”.


I know that the noble Lord, Lord Higgins, and other noble Lords are perhaps sceptical of the value of a second referendum, but the independent commission makes a solid point there.

Thirdly—a detailed point, but very relevant at the moment:

“Imprint laws that apply to printed campaign materials should also be extended to apply to online campaign materials. This would allow voters to identify the source and legitimacy of political advertisements”.


And finally:

“The Commission has made various recommendations that require amendment to the legislative framework for referendums called by the UK parliament. It hence recommends new legislation to amend the Political Parties, Elections and Referendums Act … 2000 and bring these changes into effect”.


I could quote many other recommendations, many of which have been echoed on all sides of your Lordships’ House this afternoon. However, I will now concentrate for just a few minutes on what happens next.

In contrast to his colleague in the Commons on Tuesday, the noble Lord, Lord Young, clearly accepts that the current legislation is not fit for purpose. The repeated advice of the Electoral Commission and the Information Commissioner, with the continuing inquiries of the DCMS Select Committee in the other place, make this all too evident.

Occasionally it is alleged that the margin of the outcome of the 2016 referendum could not be due to the improper use of online campaigning; the Minister himself has drifted somewhat in that direction on previous occasions. The jury is out on that point: the margin was less than 4%, a 2% swing would have taken it to remain, and for every 17 people who voted for Brexit, 16 voted to stay in the EU.

I am sure that the Minister—who is always extremely well informed and briefed—has studied very carefully the authoritative report published recently by the Constitution Society, Data and Democracy in the Digital Age. He is nodding. The figures quoted there are very persuasive. Between the elections of 2015 and 2017, the Conservatives increased their expenditure on online platforms, data agencies and consultants from £2.2 million to £3.9 million; and Labour from £368,000 to £1.7 million. In the 2016 referendum the remain campaigns spent nearly £4 million and the leave campaigns some £4.5 million. Of course, those are only the returns that were recorded. They can give us only a hint of what others may have spent illegally—including, of course, the Russians, the so-called “dark money”, to which reference was made earlier in the debate.

This week’s report of the very thorough investigation by the Electoral Commission adds to the urgency for greater transparency and more effective penalties for breaking the law. If those big sums are being spent in that way—legally or illegally—either those who provided them have been fooled into investing in something that is a complete waste of money or a lot of very clever people have got the wrong end of the stick. I do not believe that and believe therefore that those very considerable sums were spent with the intent to have real influence.

In the last few days we have had the report of the investigation of the Electoral Commission which adds to the urgent demand for greater transparency and for more effective penalties for breaking the law. The two main leaver gangs stand accused—officially—of both lying and now cheating, and the modest fine is laughable. Knowingly spending an illegal £500,000 and more and being fined £61,000 cannot be accepted as appropriate.

If this vast expenditure has insignificant impact then, of course, it may be that it does not really matter—but clearly it does. Parliament will have to legislate for the digital age and, in particular, we need to improve the defence mechanism to prevent foreign interference. The source and legitimacy of all forms of support—in kind as well as in cash—must be reviewed, and here the role of American billionaires may be as influential as that of Russian state-sponsored bots.

There is unanimity among our statutory advisers and other interest organisations that the law needs updating urgently. The Minister himself referred again on Tuesday to his party’s 2017 statement, recognising the,

“broad consensus that election law is fragmented, confused and unclear”.—[Official Report, 17/7/18; col. 1140.]

He also reminded your Lordships that we cannot just take down the previous Act from the shelf—there is an Act for each referendum—because, despite the recommendation of the independent commission that there should be generic law covering all referendums for consistency, we have not got it.

It surely is necessary now to start the process to find a consensus on what needs to be done. The work of the independent commission gives us a very good start. We could start now to draft the main amendments and new clauses that would be likely to command that consensus—inside and outside Parliament—so that we can be ready for whatever may be needed in a few months’ time.

I do not think that we are in a process at the moment that can end up simply with a political fix—an agreement to do whatever in a few months’ time within the political system. As the noble Lord, Lord Norton, reminded us earlier, political sovereignty rests with the people. If you once ask them a question and then decide you may need to change that a bit in future, it will not be sufficient just to bring it back to Parliament. However much we revere and respect the sovereignty of Parliament, we will have to think about how the people feel as well. After all, yesterday even the normally cautious and sceptical Times reported increased support for, and an increased likelihood of, a further poll. I believe that it would be simply irresponsible for the Government not to start work now on updating the referendum legislation.