Brexit: Further Referendum

Lord Tyler Excerpts

Thursday 17th January 2019 Lords Chamber

Asked by

[Lord Tyler]

To ask Her Majesty’s Government what legislation is necessary to enable a further referendum on the United Kingdom’s membership of the European Union to take place in 2019.

[Lord Tyler (LD)]

My Lords, I am delighted to be able to open this very topical debate. I am disappointed only that for obvious reasons the noble Lord, Lord Young of Cookham, is not able to respond, since I know from long personal knowledge that he would have been fully acquainted with the issues to which I will refer. However, I was delighted to note his comment just now about referendums. I will take that away and think about it again. In the meantime, it seems that he and the Cabinet Office have been able to brief the noble Lord, Lord Callanan, the Minister who is to respond, which is just as well since the subject of this debate has relatively little to do with his department.

Incidentally, I was interested to see a Written Answer yesterday from the Minister in which he announced,

“we will be leaving the European Union on 20 March 2019”.

He may be leaving on that date but the rest of us have to wait nine more days, or possibly nine more weeks—or not at all.

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

I am grateful to the noble Lord for the opportunity to correct that. It was an administrative error. It did not correspond to the draft of the Parliamentary Question that I signed off. I have spoken to the Permanent Secretary in my department, who is instituting an inquiry into how that happened. I have also written to the noble Lord, Lord Bassam, to apologise for the error and correct the record.

[Lord Tyler]

I am delighted that the Minister has had that opportunity. I suspect that it was handwriting; if his is anything like mine, “0” and “9” occasionally look much alike.

The subject on the Order Paper does not directly argue the merits or demerits of a further referendum on our relationship with our present partners in the EU. I note in passing, however, that the unprecedentedly large majorities in both Houses defeating the Government’s current preferred deal, to which the noble Lord, Lord Young, referred just now, together with the ever-increasing insistence that a crash-out no deal is unacceptable, means that the Cabinet and Parliament may together move in the direction of a new referendum. That is certainly the view of all serious commentators since those votes, while of course the vote last night removes the alternative of a snap election. I should say that next month I will celebrate the 45th anniversary of my first election to the other place. I have never experienced anything quite like the irresponsible prevarication of kicking the can down the road, which is of course evident again in the other place this very afternoon with the Business Statement. It is quite extraordinary.

However, that is not the subject of this debate: I am sure that the Minister and other speakers will not wish to spend precious time on it. Rather, we are concerned here with the practicalities of electoral law. I am extraordinarily grateful to the noble Lord, Lord Lisvane, for still being here—I suspect that he has missed his lunch. He and I anticipated, way back in September 2018, that the circumstances could arise if and when the Government or Parliament, or both, had to examine the need for new legislation. We were anxious that the pressure of time in such circumstances might mean that a consensus on the necessity of dealing with acknowledged defects in the 2015 Act was ignored or that both Houses were forced to rush through inadequately scrutinised proposals. In our experience, nothing results in imperfect law more than claims of expediency or lack of time. We were reinforced in our determination that such a process could not and should not be cobbled together at the last minute when an authoritative report from the Constitution Unit at UCL was published in October—it has been referred to in the excellent Library brief for this debate.

With the expert advice of Dr Alan Renwick from the unit, the professional assistance of the experienced legislative draftsman, Daniel Greenberg, and supervision by a cross-party/non-party reference group comprising also the noble Baroness, Lady Quin, and the noble Lord, Lord Hodgson of Astley Abbotts, we produced the draft Bills before Christmas.

Significantly, we concluded that a very short “paving Bill” would be necessary to authorise the Electoral Commission to start preparations before Royal Assent for the main Bill because there is clearly a tight timetable ahead. By this means, we calculate that polling day could be any time before the beginning of May 2019 or even earlier. That would be very helpful in terms of the European parliamentary elections that follow at the end of May.

Of course, individual members of this team have differing views on the desirability of a further referendum and do not necessarily endorse every word of the drafts. However, we all agree that Parliament must consider and approve properly prepared, effective and updated legislation for this purpose.

On Monday this week, just before the votes in the two Houses, a formidable cross-party group of MPs, led by my right honourable friend Vince Cable and including Dominic Grieve and Chuka Umunna, published our draft Bills and endorsed this approach. Subsequent events have clearly justified their and our commitment to concentrate on relevant preparation rather than wasting millions of pounds and millions of hours on the no-deal distractions. As noble Lords may be aware, yesterday Mr Grieve formally presented our cross-party draft legislation in the other place.

No doubt other Members of Your Lordships’ House participating this afternoon will have examined these draft Bills, which are included in the Library brief together with all the other relevant discussion that has taken place in both Houses in recent weeks and months, so I do not need to take them through every aspect of our proposals but simply highlight the crucial features.

The draft paving Bill, the preparatory legislation, is limited to authorising the Electoral Commission to consult on the choice of the ballot paper question, which will also affect the choice of lead campaign organisations, before Royal Assent for the main Bill. This could be taken through both Houses in a matter of a few days or even hours. We were guided by a wide range of expert opinion and took careful note of the views of the Electoral Commission in opting for a simple binary choice, just as in 2016, between two very firm, detailed and easily intelligible options—indeed, much firmer and more intelligible than in that case.

Our initial proposal is that the choice should be between the leave conditions negotiated and recommended by the Government and remaining within the existing, well-understood conditions of EU membership. Much as electoral reform anoraks like me might enjoy a three-way, AV or two-question poll, we agree with all the expert evidence that we have received that this would be both confusing and likely to result in variable and unclear results.

The other area of potential variation on the 2015-16 legislation that concerned us was the franchise. Since I successfully supported the inclusion of 16 and 17 year-olds at one stage of the 2015 Bill in your Lordships’ House, and lost that only when support fell away at ping-pong, I am only too aware of the case for them to vote on such an important decision for their future. That case will be made again, I know, together with that for all EU citizens permanently resident in the UK and all UK citizens resident abroad.

However, we were persuaded by the Constitution Unit and others that to include in this first draft a change in the franchise compared with 2015-16 position would be seen to be moving the goalposts. Therefore, we have not done so at this stage.

This did not preclude us from examining carefully the generally agreed case for removing defects in the 2015 Act where the subsequent experience of the Electoral Commission, the Information Commissioner’s Office and the DCMS Select Committee had identified the need for greater transparency relating to spending returns on the one hand and the authorship and payment for online messaging on the other. Our schedule to the main Bill, especially items 3 to 6, deals with those matters.

In my usual constructive and positive way, always helpful to Ministers, I am both posing the Question and providing the Answer today. This is practical contingency planning, compared with the nonsensical preparations for the crash-out no deal that the noble Lord, Lord Young, referred to earlier as now really removed from our consideration. I am sure that other Members of your Lordships’ House will be equally concerned to ensure that Parliament, if now faced with this challenge, is well prepared—in a former life, I was a Boy Scout, as no doubt were other Members of your Lordships’ House: be prepared.

I can confirm that my right honourable friend Vince Cable and other colleagues have raised these practical issues with the Prime Minister and her senior Ministers in response to her invitation following the vote last night. This debate could not be more topical and I am delighted to introduce it.

--- Later in debate ---

[Lord Sherbourne of Didsbury]

Thank you. When we had the referendum in 2016, everybody knew the result would be accepted. I have here just one example of what the late Lord Ashdown said on the eve of referendum day:

“I will forgive no one who does not respect the sovereign voice of the British people once it has spoken. Whether it is a majority of 1% or 20%”.


For all of us—in or out—when the British people have spoken, we do what they suggest. As Lord Ashdown said, “they command”.

If we have a second referendum, we will be invalidating the result of the first—we will be saying that it did not really count. In fact, by definition, we will also be invalidating the second and beginning to remove a cornerstone of confidence in our democratic system.

My second point is that, in a general election, the electorate delegate to politicians the responsibility for taking complicated decisions. In this referendum we have learned the problems that occur when politicians delegate to the public responsibility for taking a complicated decision. We ought to have realised that this is a very difficult thing to do. The people decided that they wanted to leave the European Union. If the public are now told by the politicians that they are so hopeless, so incompetent, so utterly useless that they have to ask the people to do the job that they should be doing, they will further undermine public confidence in them. We know what happens when that chasm widens. We see it today in many countries in Europe, and we saw it in pre-war Europe in the 1930s. I fear that if the politicians are yet again seen to be useless, saying to the public, “We were no good—we’ll have to hand it over to you again”, the chasm between politicians and the public will become ever wider.

[Lord Tyler]

I point out to the noble Lord that his two arguments are mutually contradictory. On the one hand he says that we should not respect the results of referenda, for reasons he has just given, and on the other he says that we have to respect that of the 2016 referendum.

[Lord Sherbourne of Didsbury]

No; I said that we should accept the result of the referendum but that public confidence in the acceptance would be eroded. If we have a second referendum and the public believe that the politicians have said, “We don’t think you made the right decision; therefore, it’s invalid”, they will think, “Why is the second referendum more valid than the first?”

--- Later in debate ---

[Lord Callanan]

My Lords, I thank the noble Lord, Lord Tyler, for so excellently introducing this important subject and giving us an opportunity to debate it today, and I thank all other noble Lords who contributed.

I will first address the remarks made by my noble friend Lady Browning, who made a number of excellent points, which were amplified by the noble Lord, Lord Adonis. She asked a number of questions about the technical conduct of referenda, and some of her points were also reflected in the report of the DCMS Select Committee and others. The Government are currently considering this matter, but it is not within the purview of my departmental responsibilities—it is a matter for the Cabinet Office—so perhaps it would be best for me to write to my noble friend, and copy other noble Lords, with the detailed responses to her questions.

The referendum held in the summer of 2016 was indeed a historic event for the United Kingdom, a vote for which there was the highest ever turnout for a UK-wide referendum and, moreover, the highest turnout in any election or referendum since 1992. I am sorry to disappoint the noble Baroness, Lady Wheeler, but it is our firm view that there can be no second-guessing of the outcome of such a vote—not when more than 17.4 million people voted to express, in the clearest of terms, an instruction to the Government, as Parliament had asked them to do, to withdraw from the European Union.

The Prime Minister addressed this in the Commons on Tuesday evening. Despite the vote against the deal, the Government still stand by their commitment to the British people to respect the clear result from the 2016 referendum. In 2016 we committed to respect that vote, and we remain committed now. We continue to work to deliver our exit from the European Union on 29 March—not 20 March. We will not hold a second referendum, and to do so would be to disrespect the result of the 2016 vote.

[Lord Tyler]

I am sure the Minister appreciates that it is difficult still to say that it is the will of the people that this particular situation should be resolved on the basis of the discussion and decision in 2016 when the latest public opinion poll, published today, shows that 56% of the population—presumably, both leavers and remainers from 2016—are in favour of a new referendum, and only 44% are against. Contrast that with the support for the Government’s current deal, and that looks to be a pretty popular way in which the will of the people is being expressed.

[Lord Callanan]

I understand the firm view of the Liberal Democrats on this; they have been dogged in pursuing it. I do not know whether the noble Lord was in the House yesterday, when I addressed the subject in a Question from the noble Lord, Lord Dykes, on opinion polling and whether public opinion has moved. There are clearly lots of different opinion polls around, but yesterday I quoted an analysis of the opinion polling that has been produced—I do not have it in front of me at the moment—which suggests that in fact, if you look at all the polls in the round, there has been no significant change in public opinion on the issue. The public remain deeply divided on the subject—which of course is why we held the referendum in the first place.