Consideration of Commons Amendments
Page 20, line 3, at end insert—“(3) Following the referendum, the Electoral Commission must—(a) publish the most accurate estimate that it is reasonably possible to make of the turnout in each of England, Wales, Scotland and Northern Ireland;
(b) include that information in any report they submit under section 6(1)(b) of the 2000 Act to do with the referendum.
(4) In sub-paragraph (3) “turnout” means the percentage of those entitled to vote in the referendum who did so.A ballot paper recorded under head (b), (c) or (d) of rule 42(4) of the referendum rules is to be treated as a vote for this purpose.”
My Lords, this body—and my body—is not built for marathons, yet here we find ourselves still debating and scrutinising this Bill. Those veterans of the Bill will know that, like a great relay race, this is the hour of the night when the baton is passed to me. It has been a remarkable journey. From November when we set out until now, four months on, we have certainly put in an immense amount of time on this legislation: a marathon 17 days with over 110 hours of Committee and, overall, nearly 100 hours more than the other place to consider this Bill. It is obvious how passionately many noble Lords genuinely feel about the matters before us—issues which go to the very heart of our constitution.
However, I believe it is time to take a step back and to look carefully at the situation before us. This is a constitutional question in more than one way. The final amendment at issue between the two Houses of Parliament is about the voting system used to elect Members of the other place, which is fundamental to our democracy. It has also been about how constituencies have been drawn, but we have now concluded that debate. However, there is another constitutional dimension to our debates: about the role of this House and the other place, our respective responsibilities and the different roles that we play within our constitutional settlement.
There are important arguments of principle both for and against thresholds. We heard them powerfully articulated earlier today, on both sides, and articulated with sincerity. Yet at its simplest, the Government’s contention is this: we have consistently and clearly said that the people of this country should have their say, knowing that their vote in the referendum will count—no ifs, no buts and no artificial hurdles. At best, a turnout threshold rewards apathy; at worst, it encourages it.
This is about the people casting their vote, fair and square and with no conditions attached. This is not about Parliament setting a condition for the validity of the people’s vote. There were no thresholds in the 1997 referendums on devolution to Scotland and Wales, despite the fact that they also would have had the effect of introducing new voting systems without that even being explicit in the question. At that time, neither the Government nor indeed this House considered that a threshold was necessary, as we do not consider one to be necessary now.
However, as I said in beginning my remarks, there is another constitutional issue before the House tonight. I have been clear, at every stage of this debate on the Bill, that I fully accept and understand the points made earlier by noble Lords, that this House should have its say on the issues before us. Not only do I understand it, I passionately believe it. This House exists to scrutinise and amend legislation, and to ask the other place to think again. However, a time must come when this House should respect the will of the elected Chamber.
I also heed the points made so powerfully in this afternoon’s debate by the noble and learned Lord, Lord Lloyd of Berwick.
My Lords, I am glad noble Lords opposite listened so carefully to what the noble and learned Lord said. This is about how representatives are elected to the House of Commons. The elected House has spoken three times on this issue: once on the question of a threshold and twice on whether to incorporate the specific amendment moved by the noble Lord, Lord Rooker. In each case the other place has spoken clearly. It has heard the arguments made in this House and it has given its response. I respectfully submit that we have asked the other place to think again not just once but twice, and we have heard its emphatic answer. After due consideration, further debate and an increased majority in another place, we have done our duty and we should let the Bill pass. I urge the House to agree to the Commons amendment. I beg to move.
Amendment A1 to Motion A
As an amendment to Motion A, at end insert “but do propose Amendment 1D as an amendment to Commons Amendment 1C in lieu”:
“Line 11, at end insert—
“(5) The estimate of the turnout in England, Wales, Scotland and Northern Ireland published under sub-paragraph (3)(a) shall be made available before any order is made under section 8 implementing the result of the referendum; and if the total turnout in the four parts of the United Kingdom is less than 40% of the total electorate of the United Kingdom, the result of the referendum shall not be binding.”
My Lords, in short I am proposing to add to the government amendment a sub-paragraph (5). When I saw the Government’s amendment a few hours ago I thought, because I am weak, that I saw some movement. Sadly, that is not the case. I said earlier today that the issue of substance is not the figure, although I have used the same one. The issue of substance is that this will be a binding referendum for the first time in the UK. The Government are still refusing to address that issue; it is being glossed over. In the talk about previous referendums, not once has anybody addressed the issue of this being the first binding referendum. That is still the case, which is why I do not apologise for continuing to raise the issue.
I had thought of adding to the government amendment—because I thought I saw a bit of movement—some words to the effect that the Electoral Commission report should be done properly, which I do not think it will be. By properly I mean that it should meet the issues that government Ministers have spoken about at the Box—that is, take off the electoral register the dead, the foreigners, the students, the hundreds of thousands with two addresses and all those with two homes. That would mean the commission had to go to every electoral register—not every constituency but every register—and double-check to get an accurate measure. That is what I would expect the Electoral Commission to do as a result of the Government’s amendment but I fear that it will not be the case. However, I would like that report to be put to Parliament and properly debated before a Clause 8 order, assuming that there is a yes vote.
I have seen no evidence. I sat in the Commons Gallery during the debate earlier this evening. The real issue was not addressed in the Commons, and the government Minister hardly spoke to the amendment that he was moving. He did not explain it. I thought, “He hasn’t got that much to say about it. It can’t be worth a great deal”. When Sir Gerald Kaufman and others indicated that from their experience, before the coalition, it was possible to get agreement on various aspects of Bills going through the House, they were shouted down.
In the years that I was a Minister in your Lordships’ House, I was in four departments and responsible for many Bills, including Bills that started here. I cannot recall a single Bill that I was ever in charge of as a Minister on which I did not offer change following debates in your Lordships’ House. Indeed, twice I made the policy at the Box and went back to the department to say to the policy Minister, “This is what you have to accept. This is the will of the Lords. If not, your Bill will be in shreds”. That is what I did because I took heed of the voices in this place who had tried to make the legislation better. However, I have not seen any attempt to do that on this Bill. On two occasions the Leader offered a “package of concessions” a week apart. I have to assume that he did that with authority. All I can say is that—I choose my words carefully—I will know what to think the next time I hear the phrase “package of concessions”.
The Government have refused to listen from day one of this Bill. They have rammed it through both Houses under a guillotine—that happened again tonight—and people who wanted to speak did not have the opportunity to do so. Reputations have been damaged all round save for that of the noble and learned Lord, Lord Wallace of Tankerness. I do not wish to embarrass him. I am just giving my view; I do not speak for anybody else. I therefore offer the House and the Government a last chance, if you like, according to what the Leader said, to break the precedent that they are creating. They can waffle all they like about previous referendums and thresholds but this threshold does not damage the introduction of AV, as I have said repeatedly. They refuse to accept that this is the first time that the people of this country have been given a referendum where the result—whatever the turnout and the majority—will be the order of the day. That has never happened before. It is no good praying in aid the euro referendum or the Scottish referendum as they were not binding referendums. Legislation followed but they were not binding, so it is no good praying those in aid. There is no precedent for what the Government are about to do. Sadly, no Minister has addressed that central issue of substance.
In some ways, I do not look forward to the morning after the count as I do not want to be proved right. I hope that there will be a successful referendum with a huge turnout and a clear vote one way or the other. That is my desire and that is what I will encourage. I do not have a problem with that. However, if that is not the case, we will be bound by the result. It will be impossible to get out of the mess and the people will find out what Parliament was doing. They will ask, “Why did you not think about this and give yourself a lifeboat? Why did you not think about what might happen? You have done it in the past with all the other referendums, so why did you not do it with this one?”. As I say, I do not look forward to the morning after the count for that reason; but many others will, because they might be proved right. I beg to move.
My Lords, I have been a Member of this House for only seven months and I have therefore listened with very great attention to the debates that have taken place around the relationship of your Lordships’ House to the other place, particularly as regards the conflict which, unfortunately, we seem to have been locked into for some time. I listened very carefully to the very persuasive speech this morning of the noble and learned Lord, Lord Lloyd, to which the Leader of the House has referred. I agreed with every word that he said save what he said about a previous debate in 2005 on the Constitutional Reform Bill, as it then was. He said that on that occasion the House ultimately acceded to the views of the other place by some 203 votes to 191. However, it occurred to me immediately that 191 Members of your Lordships' House at that time clearly did not accede to the wishes of the other place; they voted for an amendment. I thought that I ought to look to see whether the noble and learned Lord had voted for that amendment. Indeed, he did. Not only that, he moved the amendment.
Not only that, my Lords, but he was a teller. The noble and learned Lord this morning quoted my noble and learned friend Lord Falconer and I should like to repay the compliment by quoting what the noble and learned Lord, Lord Lloyd, said on that occasion. He said:
“I hope we will vote once more against the Commons amendments. I hope more fervently that we may not have to do so again”.—[Official Report, 21/3/05; col. 23.]
Clearly, he would have been quite willing to do so again, had your Lordships’ House on that occasion not ultimately acceded to the views of the other place. The Leader of the House perhaps ought to rely on rather stronger support than that inadvertently offered by the noble and learned Lord.
I am utterly persuaded by the views of my noble friend Lord Rooker. There are many in this House on all sides who have been persuaded by the force of his logic. I certainly hope that your Lordships will, if necessary—and it seems to be necessary—again approve my noble friend’s amendment and again invite the other place to think seriously about the direction in which it is taking this country and its constitution.
My Lords, I shall make a brief intervention. I did not participate in the debate this morning, although I did so at Report, 10 days ago, in a way that I am afraid my noble friend found slightly disobliging. I also voted in a disobliging way then and again earlier today.
I found the amendment of the noble Lord, Lord Rooker, persuasive on four grounds. First, as he has said when he moved it, we should avoid setting or reinforcing the precedent that referenda should not have thresholds. I do not like referenda. We elect Members to go to the other place to take difficult decisions and I think that referenda that decide important issues of public policy with small turnouts are doubly undesirable. The second reason for supporting the noble Lord’s amendment is that it sets the binding, mandatory threshold at a level that would command public confidence. It is the stickability and credibility argument. A 40 per cent turnout, at which 21 per cent, or one in five, will have had to vote in favour, seems to strike the right balance. Thirdly, the amendment means that if there were to be, as I fear there will be, substantially differential turnouts in different parts of the country because of the different types of elections taking place—parliamentary elections, Assembly elections and, in London, no elections at all—those for whom the referendum goes in the wrong direction need to be assured that there has been a reasonable overall turnout. I think that 40 per cent is that right level. Finally, the amendment is not a fatal amendment because the referendum would become advisory if the turnout was below 40 per cent. Indeed, the amendment in the name of the noble Lord, Lord Elystan-Morgan, would not have had my support because it sought to tie the hands of the Government, as opposed to enabling them to have the opportunity to consider the advisability of proceeding, when we knew what the final turnout was.
The amendment is being put forward once again by the noble Lord, Lord Rooker, in his normal robust and combative way—and it is none the worse for that. The noble and learned Lord, Lord Falconer of Thoroton, in his more silky and persuasive form, sought to raise the debate to a higher level and has made remarks such as that the amendment is in line with our parliamentary democracy and high principles. I hope that he will forgive me if I say that, when I see how his party has changed its voting position in the other place, there may be high principle, but there must be at least a whiff of political opportunism around the other Chamber.
We have now asked the other place to think about this issue twice and we have had a clear answer twice—by 70 votes last night and by 79 this evening, if my mathematics are right. We have heard a powerful speech from the noble and learned Lord, Lord Lloyd of Berwick. Whatever the rights and wrongs of the amendment, he was right to tell us that we are discussing an issue that focuses narrowly on a matter that affects the other place alone. Therefore, while I continue to have considerable and very grave doubts about the course on which my Government are embarking, I am afraid that I have now concluded, after two disobliging votes, that the time has come for the Members of the elected Chamber to make a final decision, because they alone will have to live with the consequences of their deliberations.
And I withdraw the word “unimpressive” and apologise to the noble Lord, Lord Hodgson.
There are two issues for your Lordships to consider. First, are your Lordships satisfied that the issue is important enough to be referred back? Secondly, has it been considered properly by the other place? On the first matter, we have had many debates on the issue, which has been described as the most important constitutional change since 1832. The Leader of the House talked about fair values for fair votes and other things like that. He did not deal—just as Mr Harper in the other place did not deal—with the issue of a derisory turnout leading to a fundamental change in our voting system. That is the importance of a threshold; that is why it matters; and that is why it is at the heart of what is left between your Lordships and the other place. It is for your Lordships to determine whether the issue is important. I certainly regard it as important, and it is not without significance that it is the last issue that stands between this House and the other place.
The second issue, which is the one most relied on by the Leader of the House and the noble Lord, Lord Hodgson of Astley Abbots, is: “Well, we’ve asked twice; now is the time to subside”. The amendment was first passed in your Lordships' House last Wednesday. It went to the Commons this afternoon. It was debated for another hour. I have not been able to access Hansard to read the debate. I have had a report from my noble friend Lord Rooker, which the House has also had, on what was said in the other place in the debate. This is an important constitutional Bill. It seems wrong that we should make our decision on this important issue on the basis of a debate that we cannot even read in Hansard, eight days after it was raised for the first time last Wednesday.
Noble Lords opposite shake their heads and say, “Let’s just ram this through now at this 11th hour”. It is for your Lordships to decide whether this is the right course for the House, whose role is not to overrule the other place but to make it think again, to say that debating it twice in one day, eight days after the amendment was tabled, is consideration enough of whether 13 per cent of the electorate voting for a fundamental change in our voting system that all noble Lords in this Chamber know would not be—
I am not taking interventions. Thirteen per cent of the electorate could pass a change in our voting system that would not be passed in the other place. Is that an appropriate basis on which to make a fundamental change? Is there a country in Europe or a developed democracy that would allow its constitution to be changed on that basis? Therefore, this is an important matter.
We do not know what the Commons said, although I am sure that we have a very accurate report from my noble friend Lord Rooker. Should the Commons think again or should we rely on that eight-day period as being sufficient? In my respectful submission to this House, if we are serious guardians of the constitution, then eight days is not enough. A debate that we cannot read is not enough, and the issue is sufficiently important for us to ask the Commons respectfully to think again. Therefore, I shall support my noble friend Lord Rooker, whose judgment throughout this whole debate has proved impeccable.
My Lords, the noble Lord, Lord Rooker, in what I thought was an uncharacteristically spiky speech, admonished me and, through me, the Government for not offering any change or making any concessions. As he was speaking, I thought that I would write down a few. There was the substantial concession on the Isle of Wight—
There was the substantial concession on the Isle of Wight at the request of noble Lords opposite, the substantial concession on public hearings at the request of noble Lords opposite, and—most cheekily and unusually from the noble Lord, Lord Rooker—his amendment on delaying the referendum and providing an opportunity for it to take place at any stage between 5 May and 31 October this year was accepted. Indeed, we helped the noble Lord to rewrite his amendment so that it would work. Let us hear no more talk about this Government not making concessions.
We have had nine referendums in the past 40 years. Only the 1979 referendums had thresholds, and those were imposed by Back-Benchers in another place in order to thwart the possibility of devolution being implemented. They were successful in their intention and, as I have noted before, that has been a source of much resentment. There were no thresholds in the 1997 referendums on devolution, as I said earlier; nor have there been any other thresholds in any of the other referendums that have taken place in the past 13 years.
Will my noble friend please address the point made by the noble Lord, Lord Rooker, that this referendum is quite different from any other because it is binding? The effect of his amendment will simply be to give the referendum the same status as every previous referendum in so far as the Commons is able to consider it and reach a conclusion. Will he address that argument, because it has not been addressed in either House so far?
My Lords, the referendum taking place in Wales on 3 March, on which there is no threshold and for which no threshold was requested, is for a poll which is binding on this Parliament. I know that noble Lords will say, as my noble friend and others have, that this is a binding referendum, so let me be entirely clear about my answer. Referendums are a constitutional device; they are rarely used but they are used occasionally to ask the people their view on a specific issue. I believe that it would not be right to offer the people a referendum where Parliament has explicitly laid out what the effects of that referendum would be and yet say that we might not give them what they vote for. A threshold, even in the more nuanced form proposed by the noble Lord, Lord Rooker, is unnecessary and, we believe, wrong.
My Lords, I shall not detain the House. I shall certainly not comment on that excuse about the concessions. That was not in the context of the two offers from that Dispatch Box about the defeats that the Government have suffered. It was not said in that context. It was about wholly different subjects, none of which has materialised. I think we have heard enough and people have been delayed long enough on this last day before the Recess. I beg to test the opinion of the House.