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Referendums: Constitution Committee Report

Volume 721: debated on Tuesday 12 October 2010

Motion to Take Note

Moved By

That this House takes note of the Report of the Constitution Committee on Referendums in the United Kingdom (12th Report, Session 2009–10, HL Paper 99).

My Lords, I welcome the opportunity to open this debate on the Constitution Committee’s report entitled Referendums in the United Kingdom. The report, which we published in April, was the last one produced under the distinguished chairmanship of the noble Lord, Lord Goodlad, who I can just see in his place and who I am delighted will be speaking immediately after me. Perhaps I may take this opportunity to pay a warm, personal tribute to the noble Lord’s distinguished leadership of the Constitution Committee and thank him for his advice and support as I took over the chair after the general election.

The committee’s inquiry into referendums was extensive and has proved to be extremely timely. We received a great deal of political and academic evidence, both written and oral, from national and international sources. The committee is grateful to all of those whose evidence contributed to our report and particularly to our specialist adviser, Dr John Parkinson, of York University. I must also thank the Government for their response, but I note that it is rather late, having been received only last week, and perhaps a little thin. But, of course, I realise that in the interim the coalition Government have produced their own Bill proposing a UK-wide referendum on the voting system for the House of Commons. That Bill has already had its Second Reading in another place and begins its Committee stage today. Perhaps some of the recommendations and observations of our committee are acknowledged in the current Bill. I leave the House to judge as I describe the detail of our report. I look forward with great interest to the Minister’s reply, which will give your Lordships a first opportunity to hear in this House the Government’s thinking on the principles and practice of referendums.

As the House will be aware, although there has been very much debate in recent Parliaments about referendums, they remain a relatively untried method of testing opinion in the United Kingdom. This is in contrast to many other modern democracies, including countries such as Australia and New Zealand which share our Westminster traditions and where referendums are a regular feature of political practice. Here, the 1975 vote on our membership of the EEC remains, 35 years later, the only example of a UK-wide referendum, although obviously the referendum method has been effectively used to determine devolved and local government systems. It was against that background that the committee set out to analyse the arguments for and against using referendums as a constitutional and democratic tool, and to make recommendations for their possible future use.

The basic questions come down to these. On the positive side, do referendums improve modern democracy by making voters more involved in decision-making so that controversial issues particularly can be firmly and, one hopes, conclusively resolved? On the negative side, does the use of referendums undermine a representative Parliament and oversimplify complex issues to no great general advantage? Perhaps equally important is the practical question: do individual referendums attract a sufficiently substantive voter turnout to give their decisions authority?

Overall, the committee’s position was more negative than positive. Having listened to all the evidence, we were not convinced by the case for using referendums as a common practice in 21st century governance. We regretted the ad hoc manner in which many referendums have been held—often to deal with political crises or as a tactical device by a government in trouble—while the evidence suggested that difficult issues were not finally settled by a referendum result.

If we look at the history of our 1975 referendum, it seems clearly to illustrate some of these drawbacks. It was, after all, primarily held to resolve internal policy disputes within the Labour Government of the time—about the EEC, of course—but the result certainly did not finally resolve that question, as subsequent Conservative Governments have found out. The Minister may not want to comment this afternoon on the relevance of those negative points to the current Parliamentary Voting System and Constituencies Bill, but I have no doubt we will return to them when the Bill reaches this House.

To return to the report before us today, although the Constitution Committee was sceptical about the general values of referendums, it recognised pragmatically that they are going to be used, and therefore a large part of the report is concerned with when it is most appropriate for a referendum to be held and what are the most effective ways to organise one in order to achieve proper participation and a respected result. We were aware, of course, that enthusiasm for referendums is often politically driven by a legitimate wish to use every possible means to give greater power to the electorate. This is particularly true now, when what one might call the hostile dislocation between government and the governed has become such a major political problem. The coalition Government certainly emphasise this aspect in their response to the committee’s report, saying:

“A fundamental concept … is the transfer of power from the Executive to Parliament, and from Parliament to people. The Government believes that referendums can be a valuable means of giving people a greater say over important issues, at both the national and local level. However we recognise that national referendums cannot and should not be held on every important issue”.

For our part, the committee concluded that if referendums are to be used, they are most appropriately used in relation to fundamental constitutional issues, and that begs the question of what is a fundamental constitutional issue. The committee did not want to duck the question and was clear that it could not provide a precise definition, but has none the less agreed a list of topics for which it thinks a referendum would be appropriate: to abolish the monarchy, to leave the EU, for any of the nations of the UK to secede from the Union, to abolish either House of Parliament, to adopt a written constitution, to change the UK system of currency, and to change the electoral system for the House of Commons. The last is, of course, the subject of the current Bill.

Your Lordships will have noticed that the list does not include reform of the House of Lords as a fundamental constitutional issue. However, I was interested in the reply given last week by the noble Lord, Lord McNally, to a question from his noble friend Lord Phillips of Sudbury, when he said that that was not the Government’s plan “at the moment”. He may wish to expand on that answer. But whatever may qualify as a fundamental constitutional issue, the committee was strongly of the opinion that this should be a decision for Parliament, not government alone. Legislators, not Ministers, should decide whether to hold a referendum. However, the committee and the Government are agreed that national referendums should be exceptional events. On local referendums we are perhaps slightly further apart. The Government have already published a consultation paper on local referendums to veto council tax increases, and their response to our report notes that they are committed to giving people the power to instigate referendums on any local issue as a way of making,

“the Big Society part of everyday life”.

The committee is sceptical about this approach, and while we accept the need for greater local involvement in local decision-making, we think other ways of reinvigorating citizen participation should be explored.

We heard evidence about a distinctive type of referendum, the so-called citizens initiative, where citizens can propose statute laws or broad policy changes. These initiatives have been successfully adopted both in Switzerland and in half of the United States, but most members of the committee felt that it would be extremely difficult to adapt such initiatives to the United Kingdom. We also looked at the idea of citizens’ juries and assemblies. Personally, I am sympathetic to the possibilities that we could develop on this issue, and I was impressed by the evidence of my noble friend Lady Kennedy of The Shaws, who had previously chaired the Power Commission.

The committee had one specific concern about local referendums of whatever type—who is to regulate and supervise them? Currently in our system, the Electoral Commission has no responsibility for local referendums, and my noble friend Lord Wills, who I believe is also speaking in the debate, gave evidence to us as a Minister on behalf of the previous Government saying that he thought it risky to extend the commission’s role to cover them. Can the Minister tell us, particularly given the new Government’s evident enthusiasm for local referendums, how they are to be regulated and whether it is intended that the Electoral Commission should extend its role in this area?

As noble Lords will recall, the Electoral Commission was set up under the Political Parties, Elections and Referendums Act and, under this legislation, is already charged with responsibility for national referendums. The PPERA has not been tested in a national referendum. Our only experience has been the rather ill-fated local referendum on the north-east in 2004. The committee therefore thought it necessary to examine our legal and practical framework in a comparative way. The Minister for Political and Constitutional Reform, Mark Harper MP, has kindly written to me to say that he found the committee’s inquiry about this very valuable.

Our main recommendation—which is now particularly relevant given the proposed referendum next spring—is to require the Electoral Commission to make a thorough retrospective analysis of its first experience in a national referendum and then make proposals for change. Equally, if not more important, we propose that there should be a parliamentary post-legislative scrutiny exercise of the PPERA after that vote. The Government have responded that they agree with the need for an evaluation but have not been precise about what form that evaluation may take. Perhaps the Minister can help us further with that this afternoon.

After the 2004 north-east local referendum, the Electoral Commission asked the then Government to make changes to the legislative framework for referendums. The committee was sympathetic to many of its proposals and recommended that the Government should take steps to ensure that they were implemented. We therefore welcome the inclusion by the coalition Government of three of these proposals in the current Bill. First, the creation of a statutory regional counting officer role; secondly, the Electoral Commission being given powers to promote public awareness of the registration and voting process at a referendum; and, thirdly, aggregation of spending limits for permitted participants to bring them into line with the rules of spending by third parties in a conventional election.

The Government have also agreed in their response to the committee to give consideration to the further proposal for what we would like to see—a generic code of conduct for referendums, again under the PPERA. However, once again the Government have not been specific about what form that consideration will take.

Beyond the overall organisation and conduct of referendums, our report also discusses other important practical issues concerning the timing of referendums and how information is to be provided to voters during campaigns. Perhaps the most significant is the vital question of deciding a referendum question. At present this is entirely in the hands of the Government, who are not obliged to take account of advice from the Electoral Commission. The committee recommends that, to ensure neutrality, the Electoral Commission should in future be given statutory responsibility to formulate referendum questions, which would then be presented to Parliament for approval. The Government disagree and prefer to continue to make the final decision while taking account of comments on intelligibility from the commission. No doubt this is happening now in the light of the Electoral Commission’s recent report on the problems that it has already encountered with the proposed question on AV.

The timing of referendum campaigns and votes also, naturally, raises tricky issues. Should referendums be held on the same day as other polls? We first decided that referendums should certainly not be held on the same day as a general election and that where there was a potential clash with other elections there should be a presumption against holding referendums on the same day. We concluded that this should be judged on a case-by-case basis by the Electoral Commission. The Government share our view that it should be judged on a case-by-case basis but see no reason in principle why referendums cannot be held on the same day as other polls. The Government’s response states that where it is proposed to combine a referendum with other polls—as will be the case in the proposed referendum next May—they will work closely with the Electoral Commission to ensure that any practical risks are managed.

The House and the Minister will be aware of the widespread concerns about this expressed by Members of the other place at the Second Reading of the Parliamentary Voting System and Constituencies Bill, and I imagine the same issues will be raised here today. At that time, the Deputy Prime Minister, responding to the debate, seemed sympathetic to some of the points raised. I ask the Minister to tell your Lordships whether any progress has been made on this subject, whether the Government have had discussions with the Electoral Commission about the problem and whether practical risks and ways of managing them have been identified.

A proper understanding of the question being asked and clarity about the nature of the poll are essential to a successful referendum. This in turn must depend on the quality of information that voters have received. The Constitution Committee was not happy about the effectiveness of the regulation of information provision in UK referendums and has commended the system used in New Zealand in its 1992-93 electoral reform referendums. There, a totally independent body provided information and ran the public education process. The Government’s response to this is not terribly forthcoming and states in a slightly anodyne way that it is important that voters are able to make an informed choice in any referendum and that the process for achieving this will depend on the subject matter of the poll. What steps will the Government take to ensure that voters are able to make an informed and objective choice? I remain of the opinion that there is a strong case for an independent information body in any UK referendum.

Part of the concern about information ties in with concerns about funding referendum campaigns. The committee heard from several witnesses who felt that their campaigns, particularly in local referendums, had suffered through lack of money. Some complained of the unfairness of small organisations having to compete with others which were awash with private donations, although it must be said that most witnesses felt that the PPERA, if properly followed, would iron outmost inequalities. There was other evidence suggesting that the loopholes, even under the new Act, might be exploited. The committee therefore recommends that the Government adopt some of the points raised by the EC, which has decided to make its regulations on funding more transparent.

In conclusion, I shall quote directly from the Constitution Committee’s summary of its most important findings:

“Referendums are not a panacea … Referendums may become a part of the UK’s democratic and constitutional framework. There has been little consistency in their use. They have taken place on an ad hoc basis, frequently as a tactical device rather than on the basis of constitutional principle. Notwithstanding this, we acknowledge arguments that, if referendums are to be used, they are most appropriately used in relation to fundamental constitutional issues. There are difficulties in defining what constitutes a ‘fundamental constitutional issue’ … there is a grey area where the importance of issues is a matter of political judgment. To leave such judgments entirely in the hands of the government of the day is in our view inappropriate. Parliament should decide whether or not a referendum is appropriate”.

I hope that the House will accept that the committee has attempted a dispassionate and comparative review of what has now become a topical and controversial issue in UK politics. I look forward very much to the debate and to the Minister’s reply. I beg to move.

My Lords, I thank the noble Baroness for her very kind remarks about me, which were wholly unmerited but most generous. It was a great privilege to serve on your Lordships’ Select Committee, which performs an extremely important function. I wish the noble Baroness every success in the chair, which she will adorn with great wisdom and experience. She has covered the main issues in the report comprehensively. I echo her appreciation of the contribution of the committee’s advisers and witnesses, and the evidence given to the committee will be an important quarry for many years to come for those who are interested in the subject.

I welcome the Government’s acceptance of the majority of your Lordships’ committee’s recommendations, particularly on a referendum on change in the voting system for the House of Commons, or in Wales, on further powers for the National Assembly in accordance with existing legislation and on further transfers of power to the European Union, and that Parliament should judge which issues are the subject of national referendums. I shall therefore touch briefly on where the Government’s response disagrees with the recommendations of your Lordships’ committee.

The Government say in their response to your Lordships’ committee’s report:

“Parties across Parliament will have the chance to consider legislation as it goes through Parliament”.

Quite who drafted that, I cannot imagine, but the Government may rest assured that not only parties across Parliament but individual Members of both Houses of Parliament will scrutinise any forthcoming legislation with vigour. It is puzzling that the Government reject the view of your Lordships’ committee that decisions leading to past referendums have been taken on an ad hoc basis and for political convenience—in victory, magnanimity. Perhaps that is a pointer to the future. The Government’s response agrees with your Lordships’ committee that it is difficult to determine precisely in what circumstances a referendum should be held and agree with the suggestions for those occasions when a referendum would be appropriate. While providing a useful guide, it does not and cannot represent a definitive list. Your Lordships may think that there is no ad hocery or political convenience involved there.

In evidence, Peter Kellner argued that the decision to hold the 1975 European Communities referendum was a constitutional outrage. It was wholly to do with holding the Labour Party together. Vernon Bogdanor asserted that the offer of the 1979 devolution referendums was made for tactical purposes in order to overcome Back-Bench opposition in Parliament. Michael Wills from the other place opined that the referendum in the UK had been used as a political tool, but did not see anything wrong with that. Vernon Bogdanor recommended that referendum questions should be formulated by a neutral body such as the Electoral Commission. The noble Baroness, Lady Kennedy, reminded us that the Power commission, which she chaired, had recommended that an outside body should have control over the question.

David Butler told us that referendums in the UK are going to happen only when the Government of the day want one or when it would be too embarrassing because of past promises to get out of one. Normally, they will have a referendum if they think they are going to win it and not if they are not going to win it. It is really a matter of straight politics. Since that time, matters have changed. Homer, in the form of David Butler, has nodded and the forthcoming referendum on parliamentary voting systems will not be a caucus race in which everybody wins a prize. Ad hocery and political convenience are again matters of personal speculation. Your Lordships’ committee said that it is possible to set out in legislation specific issues that should be subject to a referendum, as has been done in the past. In their response, the Government agreed with that statement and said:

“We do not propose to set out in legislation the issues which should be subject to a referendum”.

No ad hocery or political convenience there.

The Government's response disagrees with your Lordships’ committee’s disbelief that local referendums are the most effective way of increasing citizen engagement with the local democratic process, saying that they can play an effective role in supporting local decision-making and empowering residents to make localism and the big society part of everyday life. There is a reference to excessive council tax increases. The common-sense view is that local referendums would oppose rather than support local decision-making. The Government are silent on who might pay for such referendums and what their cost might be. Perhaps there might be an opportunity for referendums on that matter.

On the subject of holding referendums on the same day as general elections, which your Lordships' committee opposed, as the noble Baroness said, the Government responded that a case-by-case approach was appropriate in that area. Again—no ad hocery or political convenience there, either.

Your Lordships’ committee recommended that the Electoral Commission should be given a statutory responsibility to formulate referendum questions, which should then be presented to Parliament for approval. The Government, in rejecting the recommendation in their response, said that when provision for a referendum was made by Order in Council rather than by legislation, the commission’s view would be taken into account in framing the question included in the order. Obviously, there is no question of ad hocery or political convenience there.

I, together with many other noble Lords of my generation, took part in the 1975 referendum on the renegotiation of terms of British membership of the European Community. I was a relatively newly elected Member of the other place and keen to support the Yes campaign. I persuaded the then Conservative agent from the Northwich division of Cheshire, the late Maglena Roberts, that we should have phone-in sessions so that I could personally respond to concerns. Despite her reservations after many years in her post about the merits of this new-fangled idea, not least on the grounds of advertising expense, she eventually went quietly—or relatively quietly.

On the first day of the phone-ins, as the clock in the Conservative Association office in Northwich ticked up to 10 o’clock, Maglena watched the telephone as if it was an anarchist’s bomb about to explode. At 11 o’clock I said, “Miss Roberts, will you please look after the telephone while I make us both a cup of coffee”. On the second day, the telephone eventually rang. The caller’s inquiry was, “Mr Goodlad, what is the position of animals in the European Community?” I glanced down at the desk on which Miss Roberts had thoughtfully spread out copious briefing on every possible subject that could be covered. There was no line to take on the position of animals in the European Community—far less a suggestion as to what I might say if pressed. Without, I hope, breaking step, I tentatively said, “Madam, I believe that in general the rules are very strict”, to which the caller said, “Thank you, Mr Goodlad, I am very glad to hear it”. That was the only inquiry. Halls were booked for public meetings—half a dozen, as I recollect, widely advertised at some expense. The maximum attendance at any meeting was two people, and the only question asked was from a lady who said, “When does the Women’s Institute meeting begin?”

As many noble Lords will recollect, the front cover of Private Eye at the beginning of the 1975 campaign featured a photograph of an elderly couple dozing in deckchairs on Blackpool beach with knotted handkerchiefs protecting their heads from the sun. The caption below the photograph was, “The Great Debate Begins”. I look forward, as I am sure do all noble Lords, to further great debates, which I trust will not be disrupted by less important matters.

My Lords, I straightaway declare an interest as a member of the Constitution Committee and it goes without saying that I agree with its conclusions and reasoning. Yet the Government do not seem to share the committee’s reservations over the use of referendums generally and say that because they are firmly committed to giving people a greater say in politics, they believe referendums are one means of doing that. I therefore wish to add a few observations about the evidence that we received.

Over recent years, almost everybody experienced in politics has been anxious about the public’s disaffection with and lack of trust in politicians and political institutions. There have of course been other periods of our history where disaffection has been just as great, if not greater, so we must always keep a sense of proportion. Nevertheless, I listened carefully to the witnesses from home and abroad who put forward arguments seeking to enhance the democratic process, not just by the use of referendums but by such things as citizen initiatives, citizens’ assemblies and deliberative processes—the latter suggested by the Power commission and its chair, the noble Baroness, Lady Kennedy of The Shaws. In each case, practical difficulties arose when considering the proposals.

The first difficulty involved the relationship of referendums to parliamentary sovereignty and the principles of deliberative parliamentary democracy at Westminster, which include debates, pre-legislative scrutiny and Select Committees with the power to call and cross-examine witnesses—just as we have done. Of course, referendums are not incompatible with parliamentary democracy, but I believe that the latter is much to be preferred as a decision-making forum and that nothing should be done to undermine it.

Secondly, there came the “slippery slope” argument; how do you select the topics on which to give a referendum when there is no written constitution to provide guidelines? Without guidelines, there could be an enormous temptation to use referendums as a populist measure or to avoid facing difficult decisions. There is also a danger of using referendums to entrench legislation and prevent change. I accept that the Government say that the referendums which they have in mind will be exceptional events, but the suggestion that referendums should be used as part of a process of giving people a greater say in politics has a tendency to raise expectation and increase the appetite.

We must remember that the referendum process is expensive: about £120 million a shot, we were told. Except on a few issues, a referendum seems to appeal to an articulate minority, with the majority indifferent. We must also not forget the absent 10 per cent from the electoral register and that, each year, some 10 per cent of the adult population change address. We were told that, depending on the timing of a referendum, between 8 and 18 per cent of eligible voters would be unable to participate. Proportions of them would be significantly higher in metropolitan areas and non-registration would be significantly higher among young people and some ethnic minority groups.

Thirdly, there came a warning from the United States of America about citizen initiatives. The Californian experience was labelled as a device for the sad, the mad and the very rich, who could find a support organisation for anything under the sun. Demands for increased services were matched by a lack of desire to pay the taxes needed to provide them, while scattergun demands have a habit of bringing with them unintended consequences.

Fourthly, there was the deliberative democratic process which, to my mind, had considerable educational merit. Yet it was conceded at once that it was not an alternative to a referendum. It was costly and would only sample the opinion of a few. Nevertheless, it was clear that in-depth explanation and debate informed and changed minds and—interestingly, in the case of the House of Lords reform policy—changed a knee-jerk reaction in favour to fade right away as a priority. Incidentally, my own small-scale, but just as expensive, deliberative exercise sessions with taxi drivers on my way home over the past few years has confirmed that finding.

Our report sets out the evidence for all these proposals. There were widely differing views and there was no unanimity. However, because it seemed likely that referendums would remain in the parliamentary toolkit but there was no agreement on their use, we concluded that they should be used only in relation to fundamental constitutional issues. We listed some, but not on the basis of a definitive list. Even here, though, there were differences of opinion among the witnesses. For example, the noble Lord, Lord Wills, a Minister in the previous Government, thought that a change in composition of the other place would be a fundamental change and would merit a referendum, but a change of composition in your Lordships’ House would not. Since then, of course, there seems to have been a change of heart, but the present Government believe that a referendum is necessary for a change to the voting system while a significant reduction in membership and material changes to parliamentary boundaries do not merit one.

In conclusion, after listening to and reading again the evidence that we received, I have no doubt that neither referendums nor other initiatives constitute a panacea for, or give a restoration of, trust in politics. In my view, the rush to legislate on fixed-term Parliaments and a change in the voting system, without proper consultation or scrutiny, has increased my concern that we have not learnt any lessons on how to handle constitutional reform or re-engage the public. Nor do the focus group responses to the Electoral Commission’s report on the question for the AV referendum give a great deal of hope; most of them did not understand what the first past the post system was, let alone alternative voting. Indeed, the other day I met someone who thought that AV was another form of transmittable disease.

So long as they do not undermine parliamentary democracy, initiatives to educate the public are to be encouraged, but in my view public trust will be restored only when Members in the other place re-engage with their constituents, as the best already do, and reform their own procedural practices, not least by being emboldened to hold the Executive to account. At this very moment when that re-engagement could and should take place, though, constituencies and MPs throughout the country are to be thrown into the melting pot. As the noble Lord, Lord Goodlad, often says, sotto voce, “You couldn’t make it up”.