Referendums (Scotland and Wales) Bill (Hansard, 7 July 1997)

HL Deb 07 July 1997 vol 581 cc450-81 450

§ 5.21 p.m.

§ House again in Committee.

§ Lord Mackay of Ardbrecknish moved Amendment No. 50:

§ After Clause 3, insert the following new clause—

§ PROPORTION OF ELECTORS REQUIRED TO SECURE A MAJORITY

(" . A majority in favour of each of the propositions will be certified by the Chief Counting Officer if the proportion of those actually voting in the referendum for the proposition is equal to, or greater than, the proportion given in Schedule (Proportion of electors required to secure a majority) for the relevant percentage of the eligible electorate certified as having voted.").

§ The noble Lord said: Amendment No. 50 seeks to insert a new clause into the Bill while Amendment No. 83, which is grouped with it, seeks, more importantly, to insert a new schedule. We come now to the question of what forms a majority in a referendum. I am speaking of any referendum, not necessarily of this referendum only. I hope, as I hoped earlier, that we can discuss this matter in a slightly wider context—the context of all the referendums which the Government are promising us over the lifetime of this Parliament.

§ With regard to the question of what forms a majority, the question is whether or not a proposition has received sufficient assent in order to be taken as the "settled will of the people", as is the usual phrase with regard to Scotland. The Commission on the Conduct of Referendums, to which I have referred on a number of occasions, has not come down on any particular side with regard to thresholds. Paragraph 92 of its report points out that, General elections in the UK are decided by simple majorities in each constituency. Simple majorities were required province-wide in the 1973 Northern Ireland referendum and nationwide in the 1975 European referendum. The 40% rule applied in the Scottish and Welsh referendums in 1979 involved a double test: a majority for change and a substantial turnout".

§ Paragraph 93 states: The application of a threshold in future referendums is likely to be one of the most difficult issues to resolve. There are three main options: a simple majority of one; a proportion of those voting; a proportion of those entitled to vote".

§ At the risk of introducing a fourth main option, I believe that my proposal gives us an opportunity to discuss a combination of the number of those who vote and the majority achieved in that vote.

§ Various different systems are used around the world. Australia requires a majority of voters nationally and in at least four of the six member states. In the past, New Zealand required a 60 per cent. "Yes" vote and in Italy 451 referendums can succeed only if the turnout exceeds 50 per cent. In 1975 the White Paper which introduced the referendum on the then European Community stated the following in relation to a specified majority: The Government are concerned that the size of the poll should be adequate, and they are confident it will be so. They also consider it to be of great importance that the verdict of the poll should be clear and conclusive. In the circumstance, they believe that it will be best to follow the normal electoral practice and accept that the referendum result should rest on a simple majority—without qualifications or conditions of any kind".

§ Interestingly, some qualifications are made in that sentence—they are, that the size of the poll should be adequate and, that the verdict of the poll should be clear and conclusive".

§ However, the White Paper did not address the issue of how those qualifications are measured. The qualifications were made, but were left to one side.

§ It seems to me that the proposition that I put at Second Reading deserves a better answer today than it received then. Perhaps I may summarise it like this: I can understand—I can agree with—the argument that in a general election-type of turnout a majority of one is sufficient. That is how we operate in this country and I am perfectly happy to operate in that way although it was not to my party's favour in Scotland or in Wales at the recent general election. Nevertheless, I am content to play by the rules and do not want to shout "foul" when the rules bounce against me.

§ The problem occurs at the other end of the spectrum. One must look at some local election turnouts and ask whether a majority of one in a referendum which had a local election turnout would be regarded as, to quote the words of the 1975 White Paper, having a poll of "adequate" size and giving a "clear and conclusive" verdict. I doubt it.

§ The Swiss are into referendums in a big way. I have done a little research—in fact, the Library did it for me and I am grateful—into the turnout at some recent referendums in Switzerland. I have a list of referendums going back to 1995. Perhaps I may give the Committee the turnouts for the various referendums. They were 40.4 per cent.; 40.3 per cent.; 40.3 per cent.; 31 per cent.; 31 per cent.; 31 per cent.; three propositions were put on the one day—30.9 per cent. and 31 per cent.—again, those propositions were put on the same day and some people clearly voted in one but not in the other—and 31.4 per cent. Those do not seem to me to be very big turnouts. Indeed, they are reducing turnouts. Lest any noble Lord should think that referendum turnouts in Switzerland are always at that level, I should say that in 1989 in a referendum which proposed the abolition of the Armed Forces in Switzerland by the year 2000 the turnout was, in the words of the quote that I received, unusually high with almost 70 per cent. of the electorate turning out.

§ I suspect that the turnout depends on the issue that is being tested. If, as I hope, we are looking not only at the issue to be tested in September, but at those to be 452 tested in the future, it is right to ask ourselves what we should do if the turnout begins to drop away to 30 per cent.

§ Amendment No. 83 is a new schedule in the form of a table. It links turnout to majority and answers the question that I have posed to the Committee both today and previously: would a majority of one on a wet day's turnout be sufficient for the kind of changes that are being presented not only in this referendum, but in referendums in the future? In the table in Amendment No. 83, I have attempted to mesh turnout with majority so that if a turnout is at a general election level of over 60 per cent.—I believe that I am right in saying that almost every general election (if not every general election) has had a turnout well in excess of 60 per cent.—a simple majority will do. However, as the turnout drops by two percentage points, so the number required to vote for the proposition increases by one percentage point until on a turnout of less than 30 per cent., the support of 66 per cent. of those voting would be needed.

§ I decided not to carry on with the table because it seemed to me to be unlikely that the turnout would drop below 30 per cent. I am happy to leave it at two-thirds. I decided not to leave it at exactly two-thirds; otherwise, it would have involved fractions. I decided that we did not need them. Some of your Lordships may say that this represents a series of cliff edges. I could easily translate this into a formula, but the last time that I had to defend a formula in legislation, albeit from the other Dispatch Box, the noble and learned Lord, Lord Simon of Glaisdale, took me to task for its complexities. The formula on that occasion was fairly complex. The formula here is very simple. If m is the vote that "Yes" requires and t is the turnout, then the formula is: m equals 80 minus half of t. That gives one this table and the gradations in each group. (I hope that I am impressing the Government by my argument, if not my mathematics.) The table illustrates the point better than the formula, which is why I have used the table. It addresses some of the points that people have put about basing the whole matter on turnout or the vote obtained by the proposition and meshes the two. Therefore, there is a huge incentive on both sides to achieve a good turnout.

§ I have no doubt that the accusation will be laid at my door that I want to repeat what happened in Scotland in 1979. I do want to repeat what happened in Wales in 1979 where this table would have had to be continued quite considerably for the government of the day to have achieved a majority in the Welsh referendum in a quite different way. However, in Scottish terms one does not argue as to which side encouraged the "No" vote to abstain. My firm recollection is that those who campaigned for an assembly said that if one voted "No" one did not have to turn out. However, history being rewritten in Scotland as elsewhere, as it often is, people claim that the "Noes" did that. If your Lordships study the proposition that I have put forward, if some of the "Noes" do not vote because they believe that it is the same as voting "No", that is not the case. Every "No" who abstains and therefore drops the percentage of the poll will at the same time increase the numbers voting 453 "Yes" by not voting. I see that the noble Lord, Lord Desai. nods in agreement. Therefore, the usual accusation that is made about thresholds in Scotland does not hold water.

§ I shall not bore your Lordships with some simple examples of what happens. However, to take the result last time, if even more of the "Noes" abstain than abstained last time the position will become even more favourable to the "Yeses", on the assumption that all of them vote. If the "Yeses" also abstain the proposition is in some difficulty, but on the assumption that all of the "Yeses" vote this proposition will ensure that neither side can influence the result by not voting. I accept that it is complicated and that this country tends to like simple electoral rules. However, I believe that if we are to have a number of referendums we should address this particular problem.

§ I do not pretend for a minute that my solution is the only one. I am sure that there are others. Certainly, one could vary the arithmetic of the timetable. One could go above 60 per cent. before one started the 50 per cent. majority. I have not done that. Before any noble Lord jumps up and makes a mistake about it, anyone who has done the arithmetic will realise that last time the "Yeses" would have won. Some of my noble friends believe that I have not done my arithmetic correctly. That is not the case. I am attempting to answer what I believe to be a legitimate, almost philosophical, point about referendums. The Government may say that if there is a referendum in which the turnout is badly down the result is only advisory and Parliament will be able to ignore it. Once we go down the road of referendums it will be extremely difficult for Parliament to ignore the outcome.

§ As I believe I said on one of the previous days in Committee, noble Lords who have ever stood for parliamentary seats—and won them occasionally—will know that often the electorate feels that Members of Parliament ignore its views on certain key emotional issues. I believe that if a majority even of a minority of the electorate vote for a proposition and Parliament decides to ignore it because there has been a low turnout that will be very bad for the trust between the people and Parliament. I believe that something along the lines of what I propose for all referendums, not particular ones, means that everyone will know the rules of the game. They will know against what the result will be measured. I believe that that is a sensible way in which to proceed if there are to be lots of referendums.

§ I hope I will not be told that I am being disruptive of the referendum that is about to take place. I am not attempting to do so. I hope that we can have a debate in which the general proposition about majorities in referendums is addressed and that we do not hark back to the 1979 rule. It is because of the 1979 rule and the undoubted difficulty that it created that I have devised this system to get round it. In my view, if some of the "Noes" had not stayed at home the majority would have voted against the proposition in 1979 and we might not today be discussing this issue. That is just my view and no doubt other noble Lords, especially those opposite and some beside me, may have a different view. However, I believe that if we are to go down the road 454 of referendums we must address the problem of turnout against majority. I commend my humble effort for dealing with this problem to the Committee. I beg to move.

§ 5.30 p.m.

§ Lord Steel of Aikwood
I seek to oppose the amendment moved by the noble Lord, Lord Mackay, because, unlike those that he moved earlier this afternoon, this has the capacity to cause real mischief in the referendum process. I believe that his earlier amendments were relatively benign.
I should like to apologise to your Lordships' House for the fact that, although I spoke at Second Reading on the Bill, I have been unable to attend any of the Committee stage up until today. I am still fulfilling diary commitments entered into before I was appointed to your Lordships' House. I should like to assure the noble Lord, Lord Mackay, that I will think fondly of him during Report stage when he will no doubt make more amendments and I shall be in South Africa. In the meantime, while I am here I feel that this amendment is one that should be resisted.
I listened with fascination to the tail end of his speech about the difference between his sliding quota and the fixed quota last time—I take the arithmetical point that he makes, which had not occurred to me until he made it. However, any quota system is an interference with the principle of the simple majority and is open to confusion. Despite his warning, I shall hark back to what happened in 1979. In my view, the introduction of the 40 per cent. quota during the passage of the legislation left Scotland in the most profoundly unsatisfactory state of all; namely, a majority in favour of the proposition but a failure to meet the qualifying quota. That left a sense of real bitterness and frustration which one does not want to see repeated in any form on a future occasion.
There are serious objections to any form of percentage quota. I draw your Lordships' attention to the fact that the referendum is likely to take place in September, even though there is not so far an accurate date. Of course, the electoral roll is made up in October each year and comes into effect in February. Therefore, one is talking of conducting a referendum on a roll which will be almost a year old. It means that the quota will include people who are deceased as well as those who decide to exercise their right not to vote. Unless it becomes Conservative Party policy to make the vote compulsory, I do not believe that it is possible to have any kind of quota system.
One should look at the recommendations of the commission which the noble Lord, Lord Mackay of Ardbrecknish, prayed in aid. During Second Reading the noble Lord quoted the section of the report which said that the use of thresholds was a political decision. However, the commission went on to say that if a threshold was used it should be a set percentage of the votes cast and not a percentage of the eligible electorate. If thresholds were set a clear explanation of the meaning of the thresholds should be included.
455 I challenge the noble Lord to suggest how we are to give a clear explanation of that sliding formula which he has invented for the purpose of this afternoon's debate. He took us on a world tour. We went to Italy, Australia, New Zealand, and Switzerland. We failed to visit Patagonia or Outer Mongolia, but nowhere have we found the sliding formula. It is an Ardbrecknish invention. It will not work. It might work in Ardbrecknish, but nowhere else. Ingenious though the noble Lord has been, it is open to severe difficulties.
I shall make use of the useful statistics supplied by the Library. If one looks, for example, at the local government elections in Westminster—the Conservative Party flagship—of May 1994, one sees that the turnout was 46.1 per cent. of the electorate. If one then goes down the table of the Mackay sliding scale, one finds that the percentage required to support the proposition, according to his scale, is 57 per cent., whereas the percentage of the electorate which supported the Conservative administration was only 24.1 per cent. Are we going to suggest that all of its actions were illegitimate? In the case of Westminster, some of them of course were. Are we to suggest that the entire thing was void from the beginning? According to the Mackay scale, it would have been.
Let me take another Conservative Party flagship. In 1993, Buckinghamshire County Council was the only county council controlled by the Conservative Party. The turnout in the election there was 34.6 per cent. Scanning the Mackay sliding scale, I find that 63 per cent. of the electorate would have been required to support the proposition. In fact the percentage of the total which supported the Conservative Party was only 14 per cent. Is it going to be ruled out? I know that the noble Lord will tell me that he is not talking about local elections but about the referendum. Therefore I can save him an intervention. But the principle is the same.
Once we depart from a simple majority, we run into real trouble. If one takes the 40 per cent. rule from 1979, one of the irritations we had in Scotland was that the Conservative government in the general elections of 1979, 1983 and 1987 failed to get anywhere near the 40 per cent. of the electorate voting for them. It was 33 per cent., 30 per cent., and 31 per cent. Will the noble Lord see the noble Baroness, Lady Thatcher, to tell her that none of her administrations was legitimate because of that? If he is, I should like him to tell me the date so that I can sell tickets for the encounter.
This is a nonsensical proposition. The noble Lord has been ingenious; he is always ingenious. However, yesterday Mr. Arthur Bell, in an article in Scotland on Sunday where he is described as chairman of the Scottish Tory Reform Group—a contradiction in terms if ever there was one—is reported as saying that the party was disillusioned with the failure to face up to its current position. It has no MPs, no MEPs, a handful of councillors and no councils under its control. It is in more than a sorry state; its condition is pitiful. That would be the right description of the amendment. It is as though, having lost the argument on devolution as a 456 principle, the Conservative Party is now going to rely on those who are dead or those who could not care less, to see through their arguments.

§ Lady Saltoun of Abernethy
I have two points. The noble Lord, Lord Steel, said, quite correctly, that we shall be working on a voters' roll that is approximately a year out of date and that therefore in the interval a number of people on it will have died. Equally, he did not mention that a number of people, very possibly approximately the same number, will, during that period, have become eligible to vote who are not on it.

§ Lord Ewing of Kirkford
I am grateful to the noble Lady for giving way. When the electoral register is made up in October each year, anyone who becomes eligible to vote during the whole currency of that register is included on the register with the date from which they are eligible to vote appended at the side of their name.

§ Lady Saltoun of Abernethy
I am very much obliged to the noble Lord. I apologise for being so ill informed. Perhaps I may return to what the noble Lord, Lord Mackay, said. It is not just bad weather that stops people coming out to vote. If you are unhappy and discontented, the chances are that you will come out to vote, but if you are happy with the status quo you are generally politically lazy, and you are very much less likely to come out to vote.

§ 5.45 p.m.

§ The Earl of Onslow
The figures produced by the noble Lord, Lord Steel, are interesting. Yes, 40 per cent. in Westminster voted. But the people who voted in Westminster could have chucked the brutes out, as happened on 1st May. The brutes were chucked out. What we are talking about with the referendums for Scotland and Wales is the total upheaval of the British constitution with all the dangers that that implies.
As I have said before, it seems to be something that is not allowed to concern the English much. But it does concern the English. A minority of a minority will be able to vote. Let us say we are down to a 30 per cent. turnout in Scotland. The population of Scotland is 5.5. million or thereabouts; and 30 per cent. of the electorate, which I presume is 4 million, is about 1.2 million.

§ Lord Mackie of Benshie
Plus or minus.

§ The Earl of Onslow
I suspect that it is something like 1.2 million. If only half of those people were to vote yes, and 49 per cent. no, it means that a very small number in a very small part of the UK has changed the UK constitution. That is a recipe for disaster. If this thing is going to go ahead, and we are going to have devolution, with all the effects that it will have on England, which no one seems to be addressing, at least let us have a substantial majority of the Scots who say, "We are prepared to risk the difficulties with England. We are prepared to go ahead with this arrangement". Let us do it that way.
457 Let us remember when Abraham bargained with God over Sodom and Gomorrah. He said: Peradventure, Lord, there be 99 just men in all of Sodom and Gomorrah". Being a good Jewish businessman he argued God right down, I think, to five. God was prepared to concede that there was another point. I wish that we would have a proper and substantial turnout and a proper and substantial amount of both the Scots and the Welsh who, if they are determined to wreck the British constitution, do it in spades and not in one club.

Lord Renton
This surely is the most important issue that we have to decide on the Bill. The idea that a mere, simple majority is good enough to make a great constitutional change which may be permanent is surely wrong. My noble friend Lord Mackay of Ardbrecknish put forward the case for the amendments in a careful and moderate way. I would go much further than the amendments. I would say that there needs to be half the electorate supporting a change of this kind. We must not overlook the cause of abstentions.
Abstentions are the result not merely of people not knowing how to make up their minds or believing that it does not matter, but often of people saying, "The only thing that matters in this vote on a referendum, which is quite different from a parliamentary election, is whether or not one is in favour of change. If one is not in favour of change what is the point of voting?".
Furthermore, in Scotland and Wales there are sometimes considerable distances to be travelled in order to vote. Many people who may have difficulty in travelling to vote might say, "I'm not going to vote because I believe that we do not want this change. I do not see the point of going to vote when it really won't matter". As was pointed out last week by my noble friend Lord Campbell of Croy, that is a relevant factor in deciding the matter.
I do not know whether a decision will be made today, but we must consider the matter very carefully. It would be tragic if the people of Scotland were thought to have approved of such a major change—of a new parliament perhaps with tax-raising powers—when only 36 per cent. approved, as happened in 1979. Thank goodness that was not accepted by the Government of the day. This is an important matter and I hope that ultimately we shall reach the right decision. I should have been prepared to table an amendment providing that no change shall be made unless 51 per cent. of the people approve.

§ Lord Monson
I agree with the noble Lord, Lord Renton, that this is one of the most important matters, if not the most important, that we shall discuss. I agree with it wholeheartedly in principle. It is wrong that a majority of 50.001 per cent. of a low turnout should suffice to push through constitutional change. Few would deny that devolution equals constitutional change and that, moreover, it is likely to lead sooner or later to greater constitutional change than is perhaps now envisaged.
458 When constitutional change is contemplated, it is normal to require a more convincing and solid majority than 50.001 per cent. of the entire electorate, whether or not they turn out to vote. The noble Lord, Lord Mackay of Ardbrecknish, gave a number of examples. He might also have instanced the March 1950 plebiscite in Belgium over the return from exile of King Leopold III. However, nearer to home, what better example can we have than the Church of England. A majority of two-thirds in each house of the Synod is required for any major change to take place. The Committee will remember that the Anglican/Methodist unity proposals foundered in May 1972 because although 85 per cent. of the bishops were in favour, the overall majority was only 65.81 per cent. It may be that 66 per cent. is too large a majority in this instance, but certainly 50 per cent. on a low turnout is much too small.

§ Baroness Carnegy of Lour
As regards satisfaction with the outcome of the referendum, the straight majority that is suggested is worrying. If I may say without sounding too pompous, this is a House of Lords matter. The noble Lord, Lord Steel, laughed at the amendment with merry glee. It is complicated and the algebraic formula may not be plain to all voters. However, if the Government could stop laughing at every suggestion that a straight majority is a fancy threshold, as they have up to date, they would obtain a formula which would make the referendum satisfying to the people of Scotland and Wales. It will not he very satisfying if there is a 60 per cent. turn out and 31 per cent. of those who might vote say, "Yes", and we have a parliament, or the other way around.
The relating of the two columns is a clue to the amendment. I believe that the Government should take the issue seriously. I do not know whether we will vote on it or what the outcome will be, but whatever happens Members of the Government should take the issue seriously and should not just sit there smiling away. There was an article in today's edition of The Times warning about that. I feel strongly that on such issues the House of Lords should say to the House of Commons, "Please, think of a better way". I say to the Government and I say to the Commons, "Please, take this seriously".

§ Baroness Ramsay of Cartvale
I, too, take the issue seriously. Before the Bill came to this House, Members opposite made much of statements that unlike their party colleagues in another place they would not introduce amendments that were frivolous or juvenile, a word used by the noble and learned Lord, Lord Fraser of Carmyllie, who is not in his place. That was to their credit.
This amendment is certainly not juvenile. I hope that it is not juvenile because I do not understand it. I believe the noble Lord, Lord Mackay of Ardbrecknish, is overestimating the mathematical abilities of other people. They are abilities which he undoubtedly has but which I cannot match because I do not understand the amendment. It is certainly not frivolous, but I cannot help believing that it is what the French would call "not serious". I have heard many threshold proposals, but of all I have heard anywhere this is the most bizarre.
459 As I said on Second Reading and during the debate on the humble Address, I am against thresholds in principle. I can see no logic in allowing people who do not participate in voting in democracies to affect the results. In democracies such as Britain where everyone can vote, where everyone has the opportunity to do so, do not see how one can possibly defend the choice not to do so as a result of apathy or whatever, which will affect the result. The British tradition of not having thresholds is correct. It is not helpfulߞ

§ The Earl of Onslow
I thank the noble Baroness for giving way. There is no British tradition of referendums. We are treading uncharted waters. That is the difference.

§ Baroness Ramsay of Cartvale
They are not that uncharted; we have been here before. There certainly is no tradition of having any thresholds except in 1979 and we all know that that was motivated by those who were opposed to devolution. If we introduce fancy franchises—with respect to the noble Baroness, Lady Carnegy, it is a fancy franchise to play around with something that is completely alien to the British tradition of elections of any kind—people will rightly suspect that those who are making suggestions are motivated in exactly the same way as were the people in the 1970s; they are trying unfairly to weight the ballot against a result which they fear.

§ 6 p.m.

§ Lord Mackie of Benshie
The noble Lord, Lord Mackay of Ardbrecknish, must be talking about an entirely different situation from the one I am talking about. I am talking about a referendum in Scotland which has been talked about and voted on; and there is not a single MP of the party which opposes some form of constitutional change in Scotland. Arguments have been put forward by the noble Lord, Lord Renton. He said that people will not go a long way to vote. People in Sutherland used to go miles to vote. In the end, they came miles to vote for my opponent but they also came miles to vote for me. Distance certainly does not deter them.

Lord Renton
It is very kind of the noble Lord to give way. People may travel a long way to vote for him but they may not trouble to travel any distance at all just to vote "No" when they think that that vote can be achieved by not voting at all.

§ Lord Mackie of Benshie
That is why we do not believe that not voting should have an effect. That is the whole point. The views of people who vote are valid; the views of people who do not vote should not be valid.
In Scotland, there is an immense interest in this matter. There will be a decent turnout. I would bet money with anybody that that will be the case. We have two simple questions and a simple majority is what is required. We shall have a good turnout. We are voting on a simple referendum in Scotland. A simple majority 460 of the people who vote for what they believe in is what we require. We do not require a formula such as has been put forward in this amendment.
If we were discussing referendums on many different issues, as there are in Switzerland, then there may need to be a formula. But any government who produce referendums in this country which have a 30 per cent. turnout would be turned out themselves shortly afterwards.

Viscount Bledisloe
We all know that you can prove anything by the misuse of figures. But I was still surprised by the noble Lord, Lord Steel, using analogies with general elections and county council elections. I should have thought that a Liberal Democrat, of all persons, would know that in such elections there are normally more than two candidates. If you take proportions when there are a lot of candidates, you obviously get a very different figure from this situation in which there are merely two questions and only two runners in each race.
Some Members of the Committee have said that they find the formula very difficult to understand. If they do, that seems to demonstrate perhaps that the Statement that we heard this afternoon about numeracy in primary schools came none too soon. For those who find it very difficult, perhaps I may point out that if 30 per cent. of the people vote, on the proposition of the noble Lord, Lord Mackay, only 20 per cent. of the electorate is needed to achieve a majority. If 60 per cent. of the electorate vote, only 30 per cent. is needed to achieve a majority. If it is really being said that the entire constitution of this country should be changed, and if it is too much to ask that between 20 per cent. and 30 per cent. of the people in Scotland should turn out and vote in favour before there is a change in the constitution, then those in favour of devolution seem to have little confidence in their case.

§ Lord Rees
I apologise to the noble Lord, Lord Mackay of Ardbrecknish, in particular and to the Committee for not having heard the noble Lord's opening remarks. I hope that I shall not cover ground that he will no doubt have covered more eloquently and ably than I could do.
I move to intervene in the debate because various Members of the Committee have attempted to equate this referendum with a general election. As I understand it, that is not the purpose of this referendum. I shall not weary the Committee with my views of whether a referendum is a well-established constitutional parliamentary device in this country. I do not believe it is, but let us leave that aside. There are precedents. I agree that there was a precedent 20 years ago on this very issue. On that occasion, the threshold for a referendum was introduced not by those who opposed that particular piece of legislation from the Conservative Benches; it was Mr. Cunningham from the Labour Benches who introduced the threshold. I thought that that was very proper and that it gave a certain gravity and more sense to the substance of the debates and what was proposed in the legislation itself.
461 This is not a measure for a legislative referendum. What is decided in this Parliament on the referendum does not establish a Scottish parliament or a Welsh assembly. As I understand it, it has merely been invoked by this Government to give a certain legitimacy to what they propose in relation to amending our constitution. Perhaps I may say to the noble Earl, Lord Onslow, that I agree that this is an extremely important measure. If a referendum is introduced and it goes in a certain direction with no threshold, it will be a very important constitutional measure. The Minister will perhaps confirm that the Government have proposed a referendum to give legitimacy to the proposed Scottish parliament or Welsh assembly which they might not otherwise have.
We all proceed on the fiction that what has been mentioned in the election manifesto of the party which won that particular election, as the Labour Party has done perfectly properly in this case, must be treated as having the support of the electorate. We all know that that is a fiction. It may or may not be true. I do not believe that the question of devolution featured very largely in the debates up and down the country prior to 1st May, but let that pass. As I understand it, the Government are very properly saying, "To ensure that we have a proper test of public opinion, there shall be a referendum". That is the purpose of this piece of legislation.
Therefore, it cannot be equated with an election. It is not the same as an election. It is to test the views of the electorate on a particular measure which will or may be introduced because as we understand it—and we covered this ground on the first day or so of our debates—it is an advisory, and not a legislative, referendum.
The Government can say, "Right, we will have nothing to do with thresholds. It is true that when we last essayed this 20 years ago, we got the wrong answer and we shall not be troubled with thresholds on this particular occasion". It may be that, with the overwhelming predominance which the Government have in the Commons, they can eventually force it through. That may be at a certain price in terms of the time which can be devoted to all those matters, but let that be so.
But the noble Lord who speaks for the Government, with great persuasiveness and balance, must recognise that if there is not explicitly or tacitly some kind of threshold, the outcome of the referendum, if it were to be in favour of what is proposed in subsequent legislation, would not have anything like the same force or legitimacy. Therefore, the Government would not have achieved what they seek to achieve. They could not say that an overwhelming majority in the country as a whole is in support of a Scottish parliament or a Welsh assembly. We do not know exactly what may be proposed but let us hope that that will emerge before too long.
Therefore, if the noble Lord and his colleagues on the Government Front Bench are minded to sweep aside the very cogent points that have been made in favour of this particular measure, and if they proceed with a very small 462 majority in favour under the referendum, then they will be exposed to the criticism that the country as a whole is not in favour of this particular measure.
Before I sit down, I shall leave one question with the Minister which I hope he will answer. Let us suppose that there is no threshold formally embodied in this legislation. Is there any kind of minimum figure that the Government have in mind if, for example, only 10 per cent. of the electorate in Scotland and Wales voted in the referendums? Further, if the majority in favour of the measure covered by the referendums was, say, 100 in each country—and that is a hypothetical figure—would the Minister then say that the Government had secured the legitimacy and the support that they require to proceed with a further measure for the introduction of a parliament in Scotland and an assembly in Wales?

§ Lord Thomas of Gresford
The noble Baroness, Lady Carnegy of Lour, said the issue as to whether there should be a threshold is essentially a matter for this Chamber. That reminded me of the position in the Parliament Act 1911. Unfortunately, we have no written constitution. As a result, amendments to the constitution are not passed by any known written machinery and we must look to the past for precedent.
In the January 1910 general election the Liberal manifesto said: The limitation of the [House of Lords'] veto is the first and most urgent step to be taken". Then, in the December 1910 general election, the Prime Minister wrote in the Liberal manifesto: As lately as January in the present year, I expounded to you in detail, and you approved by a decisive majority at the poll, the present aims of Liberal policy… I ask you to repeat. with still greater emphasis, the approval which only eleven months ago you gave to the proposals of His Majesty's Government". The Parliament Act 1911 made perhaps the most profound change to the constitutional arrangements of this country. There was no referendum. The mandate that the Liberal Government had received from the people in two succeeding general elections was put into effect. Surely it is that which provides the legitimacy to which the noble Lord, Lord Rees, referred. There is a legitimacy for the Government's proposals because they have a mandate from the people of Wales and of Scotland—and, indeed, with the greatest respect to the noble Earl, Lord Onslow, from the people of England—who voted them in to carry out such proposals.

§ Lord Rees
My Lords, as the noble Lord has just referred to me, can he please explain for my benefit the purpose behind the referendum or, indeed, this measure?

§ Lord Thomas of Gresford
Speaking from these Benches and devoted to devolution as we are, we are of the mind that the purpose of the referendum was to hold the Labour Party together in the run-up to the last election.

Noble Lords
Oh!

§ Lord Thomas of Gresford
Indeed, that is something which they achieved.
463 However, there is a distinction between this advisory referendum and the referendums which were held in 1979 under the Wales and Scotland Acts. Members of the Committee will recall that the amendment to introduce a threshold to those pieces of legislation was introduced not as a matter of principle by the Labour Government of that day; it was forced upon them. It was put into the legislation and provided that devolution in Scotland and Wales could not happen post the legislative process unless it was confirmed by the referendums that were carried out at that time. That compromise resulted in the most unhappy situation where a majority of people in Scotland—that is, 50.6 per cent.—voted for Scottish devolution; but that amounted to only 32.6 per cent. of the entire Scottish electorate.
We must avoid such a situation occurring again, not just in Scotland but also in Wales. The two referendums have been put forward for pre-legislative consideration by the people to give legitimacy to the discussions that we are having but not, at the end of the day, in any way to take away from the Government's mandate to introduce a parliament for Wales and a parliament for Scotland.

§ 6.15 p.m.

Lord Hughes
Many figures have been quoted in this debate. The noble Lord, Lord Mackay, pointed out that at the last referendum 64 per cent. of the people voted. As has just been pointed out, it was a very bare majority; indeed, less than 51 per cent. in favour and slightly more than 49 per cent. against. However, as the noble Lord, Lord Mackay, said, if his formula had been adopted it would have been carried at the time. However, it was not carried because Mr. Cunningham inserted the amendment and persuaded Parliament to accept it. In other words, it had to achieve 40 per cent. of the electorate, not 40 per cent. of the people voting, but 40 per cent. of the electorate. We have already heard what that meant in real figures.
Argument has been based on the possibility of a low turn-out. The noble Earl, Lord Onslow, and my noble friend sitting behind me spoke of the position if only 30 per cent. of the electorate turned out. The noble Lord, Lord Rees, went much further. He talked about the position if only 10 per cent. of the electorate voted. An organisation to campaign vigorously for a "no" vote has just been established in Scotland. It has been set up under the chairmanship of a distinguished Scottish Queen's Counsel, Mr. Findlay. Moreover, its principal organiser is the noble Lord, Lord Mackay of Ardbrecknish.

Noble Lords
Oh!

Lord Hughes
Well, that was stated in press reports. Anyway, Mr. Findlay is definitely genuine. If a vigorous campaign is to be carried out, is anyone seriously—

§ Lord Mackay of Ardbrecknish
If Mr. Findlay were to offer me season tickets to Ibrox, I might reconsider 464 my position. However, I believe that it is my noble and learned friend Lord Fraser of Carmyllie who is taking an active part in that process.

Lord Hughes
I stand corrected. However, the fact is that a distinguished Member of the Opposition Front Bench is taking an active part in working for the "no" campaign. As I was about to say, do they or anyone else taking part in that campaign believe for one moment that a 30 per cent. or a 10 per cent. turnout is a possibility? I would suggest that it is much more likely to be between 60 per cent. and 70 per cent. The last one fell as stated because 40 per cent. of the electorate was required.
The noble Lord, Lord Renton, wants to go yet further. He referred to 50 per cent. of the electorate. In a 70 per cent. poll, 70 per cent. of the people voting would have to be in favour. Under no circumstances would that figure have ever been accomplished in the table put forward by the noble Lord, Lord Mackay of Ardbrecknish. I come back to what we all hope will take place; namely, that the campaign of those we are voting "yes" and the campaign of those voting "no" will result in a big turnout. It is almost certain that there will be a substantial majority of that 70 per cent. But that is guesswork at this stage. Nevertheless, that is likely to be the position. On that basis a simple majority is the obvious solution.

§ Lord Beloff
The noble Lord, Lord Thomas, surprised me once again by the depth and inconsequence of his historical allusions. He referred to the fact that the Liberal Government claimed a mandate as the result of winning two successive general elections on their pledge for House of Lords' reform. I believe that many noble Lords would be perfectly content if the Government said, "We are going to the country again. There will be another general election and, after that, we will feel that we have a mandate". They seem disinclined to follow the noble Lord's advice. But I have a much simpler suggestion. I always like to come to the rescue of Her Majesty's Ministers. My suggestion is based on the practice of a number of countries recognised as democratic in their institutions; namely, that for this purpose there should be compulsory voting in both Scotland and Wales. Compulsory voting exists in Australia, Belgium and other countries. We would not need to talk about thresholds if there was compulsory voting. If there were fines for non-voters—as I believe is the case in countries which have compulsory voting—I dare say the problem of distance would be overcome. There would be no need to talk about thresholds and we could see what the result was.

§ Lord Hooson
Does the noble Lord agree that in this country we have never had compulsory voting for the 465 simple reason that we do not allow those who could not care less and do not vote to determine the result of our elections?

§ Lord Beloff
I do not know why we have never had compulsory voting; all I say is that countries which are recognised as democratic, including our cousins in Australia, have had it for a long time.

§ Lord Sewel
Finally we have it. Ever since Second Reading we have been waiting expectantly for the noble Lord's sliding scale—Mackay's tartan threshold. The former principal teacher of mathematics at Oban High School, the noble Lord, Lord Mackay of Ardbrecknish, has laboured long and hard to produce his sliding scale. At the end of the day, however, his report must state, "Could have done better, could have done a lot better— perhaps should not have tried at all".
Now that we have seen it in all its full glory—even its algebraic formula—we are more convinced than ever that rigged ballots and fancy franchises are not acceptable. Indeed, they do not get much fancier than this one. However, the whole idea of a threshold misses the basic point. The referendums we shall be holding will seek the electorate's views on the Government's proposals. We have made clear from the beginning that the referendums will be advisory and are intended to establish the level of support for our proposed settlement. We are committed to abiding by the views of the people of Scotland and Wales. Parliament, of course, will be free to take its own view on the significance of the referendum results.
At Second Reading and throughout much of our deliberations in Committee, the noble Lord, Lord Mackay of Ardbrecknish, has quoted approvingly and at length from the Commission on the Conduct of Referendums. However, as regards the matter we are discussing he has quoted somewhat selectively. Paragraph 94 of the report states, A simple majority of those who cast their votes carries a natural authority". Paragraph 100 refers to exactly the situation that we advocate and propose. It states. If referendums are to be advisory— which this one will be— the issue of thresholds becomes in itself less significant. For example, pre-legislative referendums based on, say, proposals in a White Paper— and there will be White Papers— would provide a measure of public support for a proposed piece of legislation. The legislation would still have to go before Parliament. Parliament would certainly take the referendums result and the margin of support into account, but will have the last word on whether and in what form the legislation is passed". That is the considered view of the Commission on the Conduct of Referendums. The tone is slightly different from that which the noble Lord, Lord Mackay of Ardbrecknish, asks us to adopt.
The manifesto on which the Government were elected made it clear that the only threshold in the referendums would be the requirement for a simple majority to vote in favour of our proposals. We shall have nothing to do 466 with rigged ballots. Any threshold other than a simple majority vote would be arbitrary and unfair on the people of Scotland and Wales. Its only purpose would be to frustrate the expressed democratic will of the people. The notion of a sliding scale, as supported by some noble Lords, whatever spurious rigour it may seem to have, is really no different. Instead of setting one arbitrary threshold, the proposal of the noble Lord, Lord Mackay of Ardbrecknish, sets 17 arbitrary thresholds. If he is concerned about a small majority on a small turnout, I have one clear word of advice for him; namely, he should go out, campaign and convince the people to vote no. That is the clear, obvious answer. If there is a danger of a small turnout and a small majority in favour, surely the noble Lord, Lord Mackay, and his friends should have confidence in their own case, namely; that they can persuade a big majority to say no. That is what the democratic process is all about.
We have had discussions today about high principles and about mathematics and statistics. As regards those who have spoken in favour of thresholds and those who have expressed opposition to the concept of devolution, there is a high R² value; in other words, there is a remarkably high correlation between those who want a threshold and those who are opposed to devolution.

§ Lord Simon of Glaisdale
Does the noble Lord accept that the converse is true also?

§ Lord Sewel
The only thing I have said is that there is a high correlation between those who want to introduce the totally anti-democratic principle of a threshold and those who oppose the idea of devolution itself. The noble Lord has been trying to blind us with science. I refer to a sliding—

Lord Campbell of Croy
Can the noble Lord explain why the Labour government in 1978 accepted, upon the recommendation of a Labour Member of Parliament, the 40 per cent. threshold that went into the Bill?

§ Lord Sewel
On this occasion I am incredibly grateful to the noble Lord, Lord Campbell of Croy, for indicating that at that time the Labour government were totally opposed to it. It may have been put into the Bill but not with the enthusiastic support of the government of the day. We want simply to hear the views of the people of Scotland and Wales. A simple majority vote will send a clear enough message to us and to Parliament.
I refer to a few more figures. Let us assume, for example, using the formula of the noble Lord, Lord Mackay of Ardbrecknish, that with an electorate of 1 million there is a 60 per cent, turnout; that is, 600,000 votes. The vote required is 51 per cent.; that is, 306,000. However, the turnout was not 600,000 but 600,001. The vote required was 300,001. What happens if there is a turnout of 600,000 and the vote in favour is 305,999? There would be a great feeling of being cheated because if one more person had taken part the measure could have been approved and would have passed the so-called threshold. To act on such a figure would be regarded not only as cheating the people of 467 Scotland but as a cheap way of dealing with the people of Scotland. It would in itself contain a recipe for instability which would mean that the people of Scotland would return to this issue, I suspect with some degree of bitterness. It is important to avoid that. They would feel that they had been denied.

§ 6.30 p.m.

§ The Earl of Onslow
Is the noble Lord stating that on 3,001 as opposed to 2,999—on two votes—he would accept the ruination of the constitution of the United Kingdom? I find that hard to stomach.

§ Lord Sewel
They were not my figures; I was using the figures in the formula produced by the noble Lord, Lord Mackay of Ardbrecknish. The nonsense is the nonsense created by the noble Lord and not of my making.
The threshold, as we have demonstrated, is one of the most dangerous introductions into the democratic process that has been engineered. We should not allow a repeat of the 1979 situation when those who sat at home and did not vote had a significant influence on the outcome of that referendum. Quite simply, we will not have a backside referendum. It is surely right that those whose views should count are those who express their views through the time-honoured process, and that those views should not be modified by those whose interest is so little that they stay away from the poll.
I cannot understand the logic of allowing those who are either too apathetic to vote or who abstain for other reasons to affect the decision taken in any ballot. The referendum should not be about people sitting on their backsides but about people exercising their democratic entitlement. If the people of Scotland and Wales want to vote for our proposals, they will go to the ballot boxes and do so. If they want to vote against our proposals, they will do that. We should not allow the non-votes of the uninterested or even the deceased to count automatically against the requirement. The views of the people of Scotland will be clear without a threshold.
There is one other important argument. The noble Lord, Lord Mackay of Ardbrecknish, has been utterly scrupulous in his contribution at Second Reading and in the points that he has made during Committee in recognising that the Government have the endorsement of their manifesto. He has not sought to oppose the principle of the Bill. In that context, it is important to read what the manifesto says on this issue: A simple majority of those voting in each referendum will be the majority required". I weigh my words very carefully in this Chamber but Members should reflect upon the point that the question of threshold and majority was put to the people in the general election and overwhelming endorsed in the 468 United Kingdom as a whole and in Scotland specifically. I hope that the noble Lord will therefore withdraw his amendment.

§ Baroness Carnegy of Lour
Before the noble Lord sits down, can he remind me whether the Labour Party said in its manifesto that it would be an advisory referendum?

§ Lord Sewel
It says: Popular endorsement will strengthen the legitimacy of our proposals and speed their passage through Parliament". We have never claimed other than that this is an advisory referendum. That is why it is a pre-legislative referendum.

§ Lord Mackay of Ardbrecknish
I am grateful to all noble Lords who have taken part in this interesting debate. I must say that the best argument of the noble Lord, Lord Sewel—indeed, perhaps almost his only argument—was his last one. I was well aware of the sentence in the Labour Party manifesto to the effect that a simple majority of those voting in each referendum would be the majority required. That is his best argument; I do not think his other arguments were very good.
I was a little disappointed that Members could not get away from this referendum to the point of principle which I was trying to establish about all referendums. That particularly applies to the speech of the noble Lord, Lord Sewel. I shall check his complicated arithmetic over the 600,000 voting and the suggestion that, if one or two do not vote because they are "no" voters, that could mean on this table that the majority might fall. I think he is probably right because of the steps; but I offered him as an alternative to that a formula which gets around that problem. If that is his only objection—in addition to the manifesto—I can easily get round that with an amendment about the formula.
I appreciate the comments that he made about the Commission's report. It highlighted the point about thresholds being difficult to ascertain, and I quoted the beginning of the chapter on that matter. I still find difficult to understand that, if the Government are saying that the referendums are to establish the level of support in Scotland and Wales, they do not seem to be able to answer the question what an inadequate level of support would be. Is it conceivable that there will be an inadequate level of support based not on the fact that the "yes" proposition obtained a majority but that the majority was very low? The noble Lord did not address that point; he homed in on the hope that the referendum in Scotland and Wales would have a high turnout and he assumed that they would have no trouble. If he is right about that, he could happily accept my amendment because above a 60 per cent. turnout a simple majority works. I begin to think that Members on the Benches opposite may be protesting a bit too much and perhaps they are not nearly as confident as I read in the press they are about the result. We shall see what happens.
I am trying to get behind the matter. What happens if we have a number of referendums as the years roll on and the vote begins to go down to the kind of level 469 I read out earlier in the Committee, the kind of turnout that they have in Switzerland? Are we happy about that? I return to the point which was surprisingly not addressed by any Member who spoke. Even if the referendum is advisory, imagine the situation where a majority on a low turnout assent to the proposition and then Parliament says, "No, we are not going to bother with that because we do not think enough of you turned out to vote". I think that that would be unstable. I commend to the Government the proposition that before we move on to the next referendum, and the next one and the next one, they should give some serious thought to this issue.
Although I believe that what my noble friend Lord Beloff said about having compulsory voting gets round the problem, I am not entirely sure that that is part of our tradition. But neither am I entirely sure that referendums are part of our tradition. One national referendum in 1975 to get the then Labour Government out of deep trouble and divisions on the European Community does not seem to me to be a great British tradition. The argument that thresholds are not a great British tradition can be added to by saying that neither are referendums. But, if we are going into referendums, then we are in a new game and I suggest that we ought to look at some new rules.
The noble Lord, Lord Thomas of Gresford, went back to 1910 and 1911. I suppose that was one better than the only Liberal Democrat amendment we had, which took us back to the pre-1707 Parliament. I was grateful for the fact that, with perhaps the exception of one or two comments from the noble Earl, Lord Russell, he said about the first mildly critical thing I have heard from his Benches about the Labour Party. That, I suppose, is a step forward and I look forward to his saying some more.
Perhaps I may say to the noble Lord, Lord Mackie, and to others that my "fancy" formula does take care of people saying that not voting is the same as "no" voting. That is why I formulated it in this way. Nobody has argued against that, and I was grateful to the noble Viscount, Lord Bledisloe, for underlining the point that I was not imposing huge thresholds on a popular opinion if that were a proposition in a future referendum.

§ Lord Desai
I did not want to speak because I thought I would only add to the confusion by mentioning formulae. Would the noble Lord not agree that his formula—and I am talking about the mathematical formula, not the threshold numbers—still gives a weight of one-half to everyone who abstains? So it is not true. If you put T=100-a, where a=abstentions, he will get a result which leads to 30+½a and ½a means that everybody who abstains has a weight of a half. So it is not true that he has taken care of the problem.

§ Lord Mackay of Ardbrecknish
I knew that it was a mistake to give way to the noble Lord, Lord Desai. He is not for nothing one of the leading economics professors in the country. We have debated on a number of occasions. I think I should invite his noble friend the Minister to write to him.
470 I was interested in the very first contribution, which was from the noble Lord, Lord Steel, who said that quota systems were an interference in democracy. I found that somewhat hard coming from a party that favours, I understand, the single transferable vote, which involves quota systems. There is nothing too alien in quota systems so far as concerns the Liberal Democrats. But in fact I thought his arguments were very poor. I was not addressing parliamentary or local government elections, as one of my noble friends pointed out. In those circumstances, there is a multiplicity of perhaps three or four parties. If the electorate does not like what the party does in government, it can turf that government out next time.
Referendums lead to decisions which inevitably will be much more stable and likely to last and not be susceptible to the will of the electorate at the next turnout on a general election. So I do not think that he has a very fair point. I was not in the least impressed with that part of the noble Lord's argument, any more, frankly, than I was impressed with his argument earlier when he was discussing the abolition of the Scottish Parliament of 1707 and the resentment caused by it and when he prayed in aid the '15 and the '45 rebellions. There were many more issues involved then, if my memory serves me rightly. Being a Mackay, my memory does in these matters, serve me rightly, as we and the Campbells, whose crest I see around your Lordships' House quite commonly, were on the right side of that dispute. I believe that there were more Scots fighting on the Hanoverian side at Culloden than were fighting on the Jacobite side. So one has to be somewhat cautious in drawing lessons from history.
I am sorry that the Government do not consider this a matter that they have to take seriously into account if we are to go into a new situation in our politics, where referendums will be—not two-a-penny; I do not suppose they will be that—not so infrequent. At least we are seeing something like five or six maybe in this Parliament already. I believe that, if we do not lay down now the kind of ground rules that I am suggesting to the Committee, we shall inevitably have to do it one day in the future. Otherwise, we shall end up with the situation in which a government decide that they will not accept the majority in a referendum because there has not been a big enough turnout. I believe that that would cause very considerable tension between the electorate and the Government and between the people outside Parliament and the Members of Parliament, including the Members of this Chamber.
But, as I said, I have read the Labour Party's manifesto. I have been invited to read it so many times that I could not avoid reading it. I have made it perfectly clear in everything that I have said in the Committee on this Bill, that I have no intention of breaking the convention about manifesto commitments. I regret to say that it is the best argument that the Government can put forward and it is rather sad, given the importance of referendums, this one and others to come.
In the light of the very clear undertaking that the Government gave in their manifesto and in view of their majority, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

471

§ 6.45 p.m.

§ Lord Mackay of Ardbrecknish moved Amendment No. 51:

§ After Clause 3, insert the following new clause—

§ PUBLICLY-FUNDED INFORMATION

§ (" .—(1) Every household in Scotland and Wales shall receive a publicly funded leaflet giving general information on the holding of the referendums, and statements of the "Yes" and "No" cases relating to the referendum question.

§ (2) The Independent Statutory Commission shall have a duty to facilitate, on an equitable basis, the preparation, publication and distribution of campaign material provided by umbrella campaign organisations; and if no umbrella organisations exist, the Independent Statutory Commission shall produce the leaflets after appropriate consultation.").

§ The noble Lord said: This amendment stands in my name and the name of the noble Lord, Lord Crickhowell, who cannot, unfortunately, be present. The important point about this new clause is that it suggests that: Every household in Scotland and Wales shall receive a publicly funded leaflet giving general information on the holding of the referendums, and statement of the 'Yes' and 'No' cases relating to the referendum question".

§ I apologise to the Committee in that I should have set down an amendment suggesting that the "yes" voters and the "no" voters should have the availability of the Freepost, as in a general election, under Section 91 of the 1983 Representation of the People Act. That has not been translated forward into the draft regulations.

§ I want to explore with the Government whether they believe that some provision should be made for every elector to receive in their hands a proper discussion of the issues, pro and con. The amendment simply asks for a general leaflet indicating what the referendum is about. I am relaxed about how that is done. Perhaps on one side of the paper is put the case for the yes vote and on the other side the case for the no vote. It will be a piece of paper that everyone receives, publicly funded. The public will then be able to judge on a précis of the White Paper the case for and the case against it and what they should do.

§ The importance of the Freepost was underlined to me this afternoon when I heard from the Benches opposite the noble Lord, Lord Monkswell, suggest to his noble friend Lady Blackstone that having consultations including during the month of August was quite wrong. He hoped that there would be enough time for consultation on the Government's White Paper on education to allow proper responses and that August was not good enough. I thought I had heard myself using that argument a little earlier and making no headway with the Benches opposite. I was rather surprised, therefore, that the noble Baroness agreed with her noble friend and said that there would be plenty of time other than August. Of course, we know that there will not be plenty of time other than August for this particular issue. We shall be addressing it during August, leading to a referendum on, let us say—just because we cannot find out the date—4th September.

§ Because it is in August and because it is an important question—we all agree on that; people who are in favour of this constitutional change believe it is very important, 472 as do people who are against it—I believe that there is a big argument for each member of the public in Scotland and in Wales to receive a piece of paper at public expense which clearly states the pros and the cons of the issues that they are being invited to address. That means that in Wales there would be a leaflet explaining it in favour of the Government's proposition in the White Paper and comments in the same leaflet giving the opposite point of view. In Scotland there would have to be a slightly more complicated discussion, explaining the pros and cons of the first question and then explaining the pros and cons of the second question. As an aside, I might be slightly amused to see the Government's argument in favour of the pros for the second question, considering that they have gone to all the trouble of a referendum on the second question. But that is another matter.

§ This is a matter which I take very seriously. I believe that it is right and proper that people should be properly informed. All along the line, the Government have said that. Therefore, I believe in having some form of publicly-funded leaflet. It would be better if an independent statutory commission were there to hold the ring in such matters; but in our democratic society, where the usual channels can work rather well, an agreement can easily be reached between the pros and the antis as to the contents of each side of the leaflet, if that is the way it is to go. The public can thus be properly informed and we can have the kind of turnout that noble Lords opposite are so keen to have in order to establish the settled will of the Scottish people.

§ This is an important amendment. At risk of the noble Lord, Lord Sewel, finding another court, I just quote again the Commission on the Conduct of Referendums. In guideline 12, it says: Every household should receive a publicly funded leaflet giving general information on the holding of the referendum and statements of the 'Yes' and 'No' cases relating to the referendum question".

§ I believe that it is a pretty convincing argument in that case. The eminent people who sat on that committee thought that we should have something of that nature for referendums in general. I believe that it is important for referendums in general and for this one in particular. But, if the Minister wants to tell me that there will be Freepost available to both the "yes" voters and the "no" voters, it would put my amendment in a slightly different light and I would look at it from a slightly different point of view. But if that is not forthcoming, the Government ought to accept this amendment. If it is not properly drafted, and I fully accept it may not be, in the second part of the proposed new clause, as I know from long experience it is a very simple thing for the Government to put right. I beg to move.

§ Lord Williams of Mostyn
As the noble Lord, Lord Mackay, pointed out, this is a question of principle and a question of mechanics. The noble Lord virtually conceded that the second part of his amendment is defective. How does one define an umbrella campaign organisation? There are difficulties, but there is no purpose in my spending time on the deficiencies of the second part of the amendment because he concedes those. Finding more holes in the amendments on a drafting basis is not fruitful at this time of the evening.
473 The real question is the question of principle which the noble Lord identified; that is, that the public should be properly informed. The media will have their part to play along with political parties, political figures and everyone who has an interest. That is one of the reasons we felt it was important in Wales that there should be a period of decent, calm reflection of two weeks or so, so that the public are fully informed on the specifically Welsh complexion and aspects of the situation.
There is a good case for ensuring that those who will vote in the referendums are well informed about the proposals on which they are being asked to vote. Therefore other persons and bodies have their part to play. I take the thrust of what the noble Lord, Lord Mackay, said; it is something with which I agree. And I can tell him that we are currently considering how best to achieve that. I do not believe that one needs yet another layer of bureaucracy with an independent commission. The umbrella organisation's description, even as a floated proposition, is not likely to work.
I take up the offer of the noble Lord, Lord Mackay, when he says that he is perfectly happy to put his proposals forward in a little more detail. All I can say, with the usual caveat now tattooed upon my head, is that there are no guarantees. I am perfectly happy to see whether or not we can come to a conclusion which is satisfactory to him. If not, we shall have to make up our own minds. But I stress again to the Committee that we believe in the validity and virtue of the case that those who are to vote ought to be well informed. On that basis, which I hope he finds helpful—I have not overlooked the second part; I have simply not dealt with it because nitpicking has diminishing returns—I ask him to respond in the way that I approached his point.

§ Lord Sempill
Perhaps I may quickly intervene. What I find interesting about the amendment of the noble Lord, Lord Mackay, is that one issue of which we are well aware, especially in Scotland and I am certain that it applies to other parts of the United Kingdom, is that there is substantial apathy among our youth towards voting—it was shown in the last election—and in their general attitude towards politics as a subject. It is important therefore that due consideration is given to the proposal and that the tone of the leaflet inspires young people. After all, they are voting on an issue which will affect their future much more than ours. They must be clearly made aware that the destiny of the way they want the constitution of this country to be taken forward sits in their hands. If the money can be found for some form of publicly-funded leaflet, clarifying exactly what is the status they are considering, it should be funded and the leaflet subsequently circulated.

§ Lord Steel of Aikwood
Perhaps I may briefly support the thrust of the agreement between the two Front Benches on this issue and make one suggestion. It is important that the Government, in coming to their final conclusions on this issue, look at the experience of both the 1975 and 1979 referendums. There were differences.
My recollection is that in the 1975 European referendum a printed leaflet of the kind described in the amendment of the noble Lord. Lord Mackay, was 474 available for the "Yes" campaign and the "No" campaign. The difference between the two referendums, as I recall, was that in 1975 there were properly established and recognised umbrella bodies on both sides who gave approval to the statements that were issued. That was not the case in the Scottish referendum. It will pay to look at what happened in the previous referendums in coming to what I believe both Front Benches agree should be done on this occasion; namely, that every voter should receive the case for each side of the argument free of charge.

§ Lord Williams of Mostyn
I do not want to mislead the noble Lord, Lord Steel. I did not say that. I know that the noble Lord, Lord Mackay of Ardbrecknish, would not have taken my remarks in that way. I said that we are currently considering how best to achieve public information and that I shall be grateful—I am sorry for any discourtesy—to all sources who wish to put forward their views. However, I stress that I have done nothing more than that.

§ Lord Steel of Aikwood
I understand that. I hope that I was not putting words into the Minister's mouth. I am urging him to look at the experience of the 1975 referendum, which I felt was the best procedure and better than that adopted in 1979. If he does that, he will end up doing that which the noble Lord, Lord Mackay, is pressing him to do.

§ Lord Williams of Mostyn
Again, I am grateful to the noble Lord for his courtesy and clarity. We of course will take that advice on board.

§ The Earl of Lauderdale
The noble Lord, Lord Sempill, referred to the atmosphere among young voters. The noble Lord, Lord Williams, said that the public must be properly informed. Perhaps I may remind the Committee that we in this Chamber are here because we take a great interest in politics. On the whole the public outside do not do so and the last general election was overshadowed by a year of media coverage of events which had not yet happened. Of course, the public were bored stiff.
I remind the Committee that it is easy to get bored with politics and perhaps I may give by example a personal reminiscence. When I used to stand for the other place and go night after night to three or four villages and address an almost empty school hall with around three people in the audience, it was often said to my wife, "Why do you not sit on the platform with your husband?" Her answer was, "I do not want him to see me wince".

§ Lord Mackay of Ardbrecknish
I am not entirely sure what I am being offered. I was grateful to the noble Lord, Lord Steel, for his support and in fact for his questioning which brought the noble Lord, Lord Williams of Mostyn, to the Dispatch Box again. I then took a note of what he said. He said, "Public consider"; something about "public information".
Going back to a debate we had earlier, I can see that someone may construe the "public information" as being information about the Government's White Paper; 475 in other words, information entirely in relation to the "Yes" case, the Government's case in Scotland and Wales. To be honest, that would go no way towards satisfying the amendment which I tabled. I must therefore look carefully at the matter, unless the noble Lord, Lord Williams, wants to intervene and assure me that any public information that was distributed would not be information only on behalf of the "Yes" campaign and nothing on behalf of the "No" campaign. That would contravene the assurances I received in a debate earlier this afternoon from the noble and learned Lord the Lord Advocate. I do not know whether the noble Lord, Lord Williams of Mostyn, can help me in that regard.

§ Lord Williams of Mostyn
I do not believe I can help the noble Lord. I want simply to be as clear as possible so that no one is misled. What I have said, and I have said it twice but I repeat it, is that we are currently considering how best to achieve that; that is, that those who are to vote or to consider voting in the referendums are well informed. I said that any sensible proposal, from whatever source, will be part of that consideration. However, I stress that I am doing nothing further than that.

§ Lord Mackay of Ardbrecknish
I am grateful for that clarification as far as it went. Perhaps I can make it clear to the noble Lord that I would certainly recommend that my noble friends vote against any proposition brought at Report or Third Reading which envisaged an information campaign which gave only one side of the argument. I would certainly recommend that my noble friends voted against that. I hope that the Cross-Bench Peers may see the force of that argument and even, in this case, the Liberal Democrats also.
I hope that that is not what the Government have in mind. They ought to give consideration to this proposal in relation to public information. I am grateful to the noble Lord, Lord Williams, as far as it goes. I shall take refuge in the usual phrase that I shall read carefully what he said—and I certainly shall have to read it carefully. I shall also probably have to write to the noble Lord about it. However, I hope that whatever the Government are considering on this issue, they will be in a position to respond at Report stage when, if they do not table an amendment to allow us to discuss the issue again— either an amendment which they mean to put into practice or just one to allow us to debate it and allow them to say what conclusion they have reached—I shall certainly table an amendment, perhaps better worded than this one, in order to bring the issue to your Lordships' attention. On that basis, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ 7 p.m.

§ On Question, Whether Clause 4 shall stand part of the Bill?

§ Lord Mackay of Drumadoon
I seek to oppose the Question that Clause 4 should stand part of the Bill. The 476 clause seeks to prevent any court entertaining any form of legal proceedings questioning either the number of ballot papers counted or votes cast as certified after a referendum by a chief counting officer or one of the counting officers.
This matter was dealt with at Second Reading by the noble Lord, Lord Sewel. He explained (at col. 1115 of the Official Report) that the purpose of the clause was to provide a safeguard against the opponents of devolution trying to delay implementation of the Government's proposals following a "Yes/yes" vote by calling into question the mandate provided by the referendum through spurious, but lengthy, litigation. He explained to the House that the clause had precedent in the legislation dealing with both the 1975 referendum and the 1979 referendums.
I shall deal, first, with the issue of precedent. I am aware of the statutory provisions that lie behind what the noble Lord, Lord Sewel, said at Second Reading. However, the situation is different as far as concerns those previous referendums. The question that arose in the 1975 referendum was whether the United Kingdom should remain a member of the European Economic Community. The Government would have been required to withdraw the United Kingdom from the Community had the vote gone against them on that occasion. The 1979 referendums were to deal with bringing into force two Acts of Parliament that had already been passed. The provisions of those Acts required that before any orders bringing individual sections into force were implemented the necessary votes had to be achieved in the Scottish and Welsh referendums.
The situation is different here because, as noble Lords on the Front Bench have stressed on more than one occasion, the referendums are to be of an advisory nature and there will be nothing to prevent the Government presenting a Bill or two Bills to Parliament, assuming they receive votes in support at the referendums, even if some form of legal proceedings were forthcoming. The existence of legal proceedings would not require the Bills to be delayed or indeed any part of the parliamentary process to be delayed.
Those noble Lords who have considered the terms of the draft orders for the holding of the referendums which are now to be incorporated into the Bill in the light of the concession made on an earlier Committee day will appreciate that only certain of the provisions are to be included. Some are not. Perhaps I may take, as an example, the position as to the counting of votes. The draft orders provide that rule 44 dealing with the attendance of people at the counting of votes will allow observers to be present. But they will be in a different position from the candidates, the election agents and the counting agents who attend at the count of a parliamentary or local election in that they will have a right only to observe. They will have no right to challenge what is going on in the sense of objecting to the rejection of a spoilt ballot paper and, in particular, will have no right to seek a recount. As there have been amendments dealing with the declaration of specific results for specific areas and constituencies, the need for 477 a recount may arise. It is just as likely to do so in a referendum as it is in a parliamentary election if those provisions are given effect to.
What the orders do not do is to incorporate into the procedures for running the referendums—one assumes therefore that it is the Government's proposal that they should not come into a new schedule—the proceedings which allow election petitions to be presented to the court seeking to challenge the manner in which a count has been conducted and, in particular, seeking to challenge the rejection of individual ballot papers. In addition, there is a possibility that people will seek to vote in the referendums, having got their names registered on the electoral roll, when they were not entitled to do so. There is the possibility that they may be subjected to some form of illegal pressure, whether financial or otherwise, to vote or not to vote; and, if they are to vote, to vote in a particular way. That is why Sections 113, 114 and 115 of the Representation of the People Act are incorporated into the proceedings that are to be followed by the draft orders as we now have them. Accordingly, there is a possibility that grounds will exist for challenging either the fact that individual voters have voted when they were not entitled to do so or the validity or otherwise of the decision to reject a particular vote as amounting to a spoilt vote.
At the present time the clause would exclude any possibility of challenging these matters in court. It would be difficult—I fully accept this—to incorporate into the proposed schedule a new procedure for such court proceedings but it would not be impossible to do so. In so far as the Government seek to obtain from the referendums some support which will provide greater legitimacy for their proposals on devolution, I would invite them to consider why court proceedings should be excluded altogether. In the absence of a provision for challenging the rejection of individual ballot papers and in the absence of the possibility of people being prosecuted for the offences we discussed on a previous occasion, there are grounds for suggesting that the clause should not stand part of the Bill.

§ Baroness Strange
I should like to support this amendment, having already spoken on this particular point at Second Reading. I will be brief, and spare your Lordships, particularly as it is important to get this Bill through our House in time to get our buckets and spades for our Summer Recess, whenever that may be.
I am certainly in favour of a referendum as I feel it is important that everyone in Scotland has a say in how much government they are prepared to pay for. And, of course, if we have a parliament in Edinburgh and a parliament in London with two lots of Scottish Members of Parliament, we will certainly be paying twice—and twice for the same thing. And I am certainly Scottish enough not to want that.
However, the point here is perfectly clear and perfectly straightforward, and nothing to do with the idea of devolution as such at all. It is simply concerned with the fairness of the referendum. Of course no one wants niggling court cases going on for ever about nothing. But if the counting officer is appointed by the Secretary of State, and is answerable only to the 478 Secretary of State and to no other court of justice in the land, it seems to me to carry more than a whiff of dictatorship. It is the type of election one might possibly expect, and would kick against, in a third world country. But not in Britain, which is a democracy and an example to all. The Scots voted overwhelmingly for a Labour government, although a lot of them voted for Conservatives and some also for the Liberal Democrats and for Scottish nationalists. That is perfectly plain. What is not plain is whether the Scots people really want an extra parliament. That is what the referendum is to find out. That is why it is so important for both the Opposition and the Government, and for everyone in Scotland, that the procedure is fair and just and is seen to be fair and just. That is why I support the amendment.

§ Lord Hardie
As the noble and learned Lord, Lord Mackay of Drumadoon, observed, this clause has a basis in precedent, first, in 1975 and then in 1978. In the Referendum Act 1975, the Scotland Act 1978 and the Wales Act of the same year, there are provisions which are of similar effect although not identical in terms.
I took the trouble to go back to look at the Committee stages of each of those Acts to see whether Members of this House had raised the question of the appropriateness of having such a provision in the Acts. My research indicates that as regards what became the Referendum Act 1975, at Committee stage there were only minor drafting amendments to the clause provided on behalf of the Government. No further amendments were provided. As the Scotland Bill was going through your Lordships' House, at Committee stage general amendments were proposed but no one challenged the appropriateness of the exclusion clause. Similarly, as regards the Wales Bill, there were two amendments, one of which was agreed and the other withdrawn. Neither related to this issue.
I also went back to the Second Reading debate on the Referendum Bill in this House. In dealing with Clause 4, the same number as we are considering, the then Lord Chancellor, Lord Elwyn-Jones, said: I come now to Clause 4. Since its introduction this has been amended so as to restrict the original rather sweeping exemptions from proceedings in a court of law. The Bill now provides only that the results of the referendum may not be challenged in the courts to force a recount, which will be a matter for the Counting Officer, or obtain a fresh poll. We believe this clause is vital to prevent frivolous challenges which would delay reaching a decision on membership, a delay which could have serious economic disadvantages. We consider the proposed limited exclusion of challenge through the courts to be essential. Your Lordships will know that any allegations against the Government about the handling of the poll can be pursued in Parliament. The clause does not, of course, exempt anyone accused of an offence under the relevant Representation of the People Act, or under the Order made under this Act, from the normal legal processes".—[Official Report, 29/4/75; cols. 1194–5.] That was observed by the noble and learned Lord, Lord Mackay of Drumadoon, in his speech tonight. He accepted that clearly anyone who voted who was not entitled to do so would be liable to prosecution. The purpose of the clause is the same as that behind the equivalent clauses in the Referendum Act 1975 and the Scotland and Wales Acts of 1978. It was to prevent any 479 challenges relating to the counting of votes or ballot papers. But it does not exclude any legal proceedings in relation to the referendum. As I have observed, people may be liable to criminal prosecution if they vote when they are not entitled to.
Furthermore, the courts, as Members of the Committee will be aware, are very jealous of their jurisdiction over clauses which seek to oust their powers. There is a substantial body of case law concerning the proper interpretation of such statutory provisions. Should any legal proceedings be brought challenging the legitimacy of the actings of the chief counting officer or of a local counting officer, it would be for the court, in accordance with that case law and in the circumstances of the particular case, to decide whether that challenge could be entertained in the light of Clause 4. For example, if it can be shown that a counting officer failed to carry out his statutory duties or had acted in any other way which was seen to be ultra vires, then the courts would intervene despite the terms of this clause.
With those assurances, I trust that Members of the Committee will agree that Clause 4 does no more than provide a valuable protection to ensure that we can act quickly in response to the results of the referendum. Perhaps I may take the point made by the noble and learned Lord, Lord Mackay of Drumadoon. I will be very surprised if the existence of proceedings in the courts challenging the referendum would have no effect on the introduction of the devolution Bill in either House. I would be astonished if in this House your Lordships did not raise the point that the whole question of the referendum and its outcome was being challenged. I am not giving any undertaking, but that is clearly a point that would be raised in debate. I am sure that the Committee would not fail to notice the existence of such proceedings.
In short, I invite the Committee to follow the precedent of the previous legislation that this House has not seen fit to challenge the appropriateness of similar provisions in the past. There have been referendums following on legislation containing such provisions and they appear to have worked well. I do not believe the fact that this is a pre-legislative referendum as opposed to a post-legislative referendum makes any difference. I urge Members of the Committee to withdraw their opposition to Clause 4.

§ 7.15 p.m.

§ Lord Lester of Herne Hill
Before the noble and learned Lord sits down, can he confirm that Clause 4 does not seek in any way to exclude the principles of judicial review? I believe that follows from what he said. All that it does is immunise findings of fact by the chief counting officer so that if he or a counting officer were to act illegally beyond the four corners of statute or were to take leave of his or her senses by acting in an irrational way, then judicial review would be fully preserved and the courts would be likely to construe Clause 4 narrowly and not in any way seek to oust the 480 jurisdiction of courts. If the noble and learned Lord agrees, does it follow that any suggestion of a whiff of dictatorship is entirely inappropriate and unjustified?

§ Lord Hardie
I thought I had made clear that that was my position about judicial review, that it would be open to someone to challenge the actings of a counting officer. I do not wish to comment about the use of the word "dictatorship".

§ Lord Burnham
Before the noble and learned Lord sits down, he may be aware of a very recent case in the general election. The result at Winchester may be challenged in the courts on the grounds that a block of votes was not counted. Obviously, I make no comment on the result of that. But is such an occurrence, which may have happened recently, not to be allowed to be handled by the courts?

§ Lord Hardie
If the returning officer failed or refused to count a block of votes, on one view that may be a failure to exercise his duties, but I do not want to speculate about such situations in this Committee.

§ Lord Mackay of Drumadoon
I begin by thanking the noble and learned Lord for his very full reply. I was interested to hear that he has had enough time to carry out his own research in response to this amendment. My experience of holding that office is that I was happy to leave such research to others.
I am grateful to the noble and learned Lord for dealing with what lay behind the two precedents. I am not entirely persuaded that they are exactly in point with the present Bill, which deals with advisory referendums. However, I take his point that no challenge was forthcoming when the relevant legislation was before your Lordships' House.
I was interested to hear what the noble and learned Lord said about how Clause 4 would fall to be construed by a court. He placed a relatively narrow construction on it, which was assisted by the contribution from the noble Lord, Lord Lester of Herne Hill. I am happy to say that the noble Lord is restoring the Liberal Democrat Benches to full support for the Government on this Bill. There was a brief hiccup in that position earlier today.
I shall read carefully what the noble and learned Lord has said because, contrary to some suggestions that have been made, we are not in the business of seeking to frustrate the Government's intention of holding the referendum some time in September. Indeed, if the Government get the vote that they seek, we are not in the business of seeking to frustrate them from placing the principal legislation before Parliament so that Parliament can then discuss in detail the major issues that arise from it. In the circumstances, I give notice to the Committee that I shall not insist on my opposition to the Question that Clause 4 shall stand part of the Bill.

§ Clause 4 agreed to.

§ Baroness Farrington of Ribbleton
This appears to be a convenient moment at which to break the Committee stage of this Bill. I therefore beg to move 481 that the House do now resume. In moving this Motion, perhaps I may suggest that the Committee stage begins again not before 8.25 p.m.

§ Moved accordingly, and, on Question, Motion agreed to.

§ House resumed.