§ 3.10 p.m.
§ Lord Hayhoe rose to call attention to the case for establishing an independent statutory commission responsible for the conduct of referendums, their organisation and administration; and to move for Papers.
§ The noble Lord said: My Lords, I am grateful to my colleagues for this opportunity to raise matters concerning referendums. Some 30 years ago—I was first elected a Member of Parliament in June 1970—about the one proposition that commanded universal support from all three party leaders was their clear opposition to the holding of a referendum on British membership of the Common Market, or the European Community as it was properly called then. That is not to say that the parties—Conservative, Labour and Liberal—were not deeply suspicious that their opponents would try to pull a fast one by endorsing such a referendum to gain electoral advantage at a late stage in the campaign. But, in the event, principled opposition was maintained.
Indeed, at that time there was greater confidence in parliamentary democracy as such. For example, Edward Heath, when asked by Robin Day on Election Forum about a referendum on the Common Market, replied:
We have got the oldest parliamentary system in the world. It is still the envy of every other country in the world and my view is that it is right to depend on that parliamentary system".
Harold Wilson's answer, again to Robin Day, was much the same:
I think it is right that it is parliament which should take the decision with a full sense of responsibility, with a sense that reflects national views and national interests".
§ And the Liberal leader, Jeremy Thorpe, in similar terms, also rejected any idea of a referendum.
§ How times have changed. Referendums—or "referenda", as some like to say—are now more generally acceptable, if not positively welcomed.1204
Professor Bognador, in evidence to the Neill Committee, said that they were used,
to secure legitimacy for decisions when parliament alone could not secure that legitimacy".
He went on to say,
for that legitimacy to be secured the losers have to feel that the fight was fairly conducted".
§ I was delighted to see that the noble and learned Lord the Lord Chancellor endorsed that sentiment in his annual Constitutional Unit lecture last December.
But Robert Hodge and his colleagues in the "Just Say No" campaign in Wales certainly did not feel that the fight had been fairly conducted. Neither did the Neill Committee. I remind your Lordships of paragraph 12.32 of its report:
We were disturbed, in particular, by the evidence we heard in Cardiff to the effect that the referendum campaign in Wales in 1997 was very one-sided with the last minute No organisation seriously under-funded and having to rely for financial support essentially on a single wealthy donor. The outcome of the Welsh referendum was extremely close, and a fairer campaign might well have resulted in a different outcome".
§ Perhaps the result of the Welsh Assembly elections last week provided some fitting retribution, with the loss of Labour strongholds like Rhondda Valley, not just for the Labour Party's control freak tendency and internal wrangling but also for the very dubious popular support squeezed out by that flawed and biased referendum campaign. Nothing like that should ever be allowed to happen again.
§ Referendums about the single currency and about our voting system at general elections, if they are to be held, must be transparently fair and even handed. There is plenty of advice about how that can be achieved. We have the authoritative report from the Patrick Nairne Commission on the conduct of referendums. I am delighted that two distinguished members of that commission, the noble Baroness, Lady Gould of Potternewton, and the noble Lord, Lord Holme of Cheltenham, will be speaking today. Sir Patrick's report spells out 20 guidelines which, while not exclusive and definitive, nevertheless cover essential elements of the arrangements and procedures which, once established and accepted by the main political parties, will ensure consistency and fairness and maximum confidence in the results of any future referendums. Like Sir Patrick and his colleagues, I favour the establishment of an independent statutory commission. But more of that later.
§ Ground rules are essential to cover the wording of the question in any future referendum that is held. They are absolutely crucial to achieve fairness, as anyone familiar with public opinion polling will testify. Reasonable thresholds must be set. A bare majority on a low turn-out—as, for example, in the Welsh referendum where, of the 25.1 per cent of the electorate who turned out, just over 50 per cent voted in favour of the Assembly—is no way to determine major questions of national importance.
§ Other issues requiring attention and perhaps prescription in legislation or by the independent commission would include the duration of the campaign and the provision of public information. In that respect, 1205 the exchange at Question Time on Monday between my noble friend Lord Peyton of Yeovil and the Minister on the Front Bench opposite was pretty gloomy to listen to. Issues such as campaign expenditure and core funding; access to broadcasting; and the role of the Civil Service during a campaign are also relevant and need to be taken into account.
§ I referred earlier to the Neill Committee on Standards in Public Life. Its fifth report is highly relevant to our debate today. It deals in detail with funding issues which go much wider than those concerned only with referendums. It deals also with the dissemination of information, with broadcasting, with umbrella campaigning organisations, and much else besides. There was, however, a lack of clarity in its proposals concerning the role of Ministers and the Civil Service during referendum campaigns. Those who have followed the debates in another place will have noted that my right honourable friend John MacGregor, a member of the Neill Committee, made a statement on 9th November last which, I believe, clarified matters in an acceptable fashion.
§ The election commission recommended by the Neill Committee would naturally and properly subsume the independent statutory commission, the subject of my Motion today. Pressures for the establishment of an election commission have been mounting over the years. When I was chairman of the Hansard Society, almost 10 years ago, it set up a commission on election campaigns, chaired by Christopher Chataway, which recommended such an election commission with a wide-ranging remit covering the conduct of general elections. Interestingly enough, there was not a single mention of referendums in its report. But, as I indicated, times have moved on, and the proper conduct of any future referendum is of crucial importance.
§ I should note that in another place my honourable friend the Member for Blaby, with all-party support, has introduced and obtained a Second Reading for a referendum Bill which is now being considered in Committee.
Perhaps I may quote from the report of the Independent Commission on the Voting System, the Jenkins Commission. In paragraph 168 it states:
we strongly support the practical guidelines set down in the Report of the Commission on the Conduct of Referendums, chaired by Sir Patrick Nairne".
It goes on to say:
In particular we urge the Government to accept the recommendation, echoed by the Neill Committee, for an independent body to oversee the conduct of referendums, although we think that the Government should be entitled firmly to express its own view in any such referendum. It seems to us that an Electoral Commission would be best placed to discharge this role in relation to the referendum on the voting system. But if this is not in place we recommend that an independent Referendum Commission should be established to oversee the conduct of the referendum".
§ I believe that the arguments in favour of an independent statutory commission, whether more generally for elections or more specifically for referendums, are now overwhelming.
§ As I understand the Government's position, they are firmly committed to publishing a draft Bill on the Neill 1206 Committee's wide-ranging proposals before the Summer Recess. Very good so far as it goes. But I hope the Minister will give more details when he replies to the debate today.
§ If a draft Bill is published this summer, followed by wide consultation and perhaps consideration by a pre-legislative Select Committee, it should be possible to enact legislation during the 1999–2000 Session of Parliament, or at least in the Session following it; in fact, in good time to cover possible referendums on the single currency and the voting system, although it seems less and less likely to me that the Government will stick to their plans to hold such a referendum. as they promised, during the lifetime of this Parliament.
§ I understand fully how easy it is to enunciate general principles about fairness in the conduct of referendums. Detailed legislative provision is quite another matter. As has been rightly said, "The devil is in the detail". But an enormous volume of work has been done by the Nairne Commission and the Neill Committee and there is much expertise available to the Government, to the political parties and to other interested and concerned institutions.
§ I suspect we shall see more referendums in the future. Two are already promised, and there is, and will continue to be, mounting pressure for one on the stage two reform of this House, as my noble friend Lord Cranborne cogently argued yesterday. There is talk of further referendums on regional governments in England, although quite where those would lead I very much wonder. Who knows what may be proposed by the Scottish Parliament and the Welsh Assembly?
I must confess that my own view about the desirability and efficacy of referendums has moved from outright hostility, when first I entered Parliament, through scepticism to acquiescence. But I am still well short of being an enthusiast. As Hugo Young wrote last October in the Guardian:
A referendum is a kind of surrender. It transfers the power of direct decision from the politicians to the people. It's also a kind of retreat, an escape-route for the political class. As far as the voters are concerned, it is both a gift and a burden. It says some things are too big to be left to the professionals. But it could also be saying this decision is one they don't have the nerve to take themselves".
§ I want to see respect for politicians and Parliament improve; I do not want to see it diminished by ever increasing recourse to referendums. But if there are to be more, they must be fair and properly conducted, following reasoned and informed debate. I hope today's debate will assist in that process. I beg to move for Papers.
§ 3.23 p.m.
§ Baroness Gould of Potternewton
My Lords, I thank the noble Lord, Lord Hayhoe, for initiating this debate, which is timely, not least—as he said—because it is likely to surface again during the discussions on the House of Lords Bill.
As a practitioner rather than a theoretician, I have long advocated the case for a radical examination of our electoral processes, and within that I would include the conduct of referendums. Before going further, I should declare an interest as a member of the Patrick Nairne 1207 Commission on the Conduct of Referendums, along with the noble Lord, Lord Holme of Cheltenham, and as a member of the independent commission on the voting system.
Listening to some of the debates on the subject, one might believe that it is a new concept. It is therefore of interest to note that the debate has raged for over 100 years. That is from 1890, when A. V. Dicey, the constitutional lawyer, advocated its use, until 1975 with the first and only national referendum being held on the membership of the European Community—an experiment it was expected at that time would never be repeated.
However, times have changed. The mid-1990s saw the manifestos of the three main political parties committing themselves to holding referendums if returned to government. Throughout that time, since 1890, there have been many academic theses written on the principle and the merits and demerits of referendums. But until the work undertaken by the Commission on Referendums in 1996, little consideration had been given to the mechanics, which is what we are discussing today, rather than the theory.
It is undeniable that referendums are now accepted as part of our political process. That no doubt influenced the Neill Committee to include aspects of the procedure in its report on the funding of political parties. I wish to focus on aspects of both reports and on the future. It was fundamental to both reports that whenever the electorate are asked to express a view, be it on the choice of an elected representative or on a specific constitutional issue, there must be fairness, transparency, understanding of the process and neutrality. Only then can there be confidence in the result.
As the noble Lord, Lord Hayhoe, so explicitly outlined, this can be achieved if the procedures are conducted and overseen by an independent commission working to laid down ground rules—a view which I fully support. The commission of which the noble Lord, Lord Holme, and I were members advocated, as a compromise to one particular view, that there should be a special referendum commission. My own view then, as it is now, is that they should form part of the overall work and function of an election commission.
The role of the election commission should, in this context, include the production and distribution of balanced information, the distribution of core funding and a check on expenditure, the conduct of the referendum proper and acting as an ombudsman to deal with complaints; and, importantly, to advise on the question to be put. Key and crucial to the legitimacy of the referendum has to be the wording of the question which can, if it is biased or badly worded, affect the result. It should be short, easily understood, objective and fair and be designed so that there can be only two possible answers: "yes" or "no".
The commission report illustrates this with the example of a referendum in California on the question of nuclear power. The reverse wording of the question 1208 caused confusion as to whether a "yes" vote meant limiting future development or continuing its use. I am sure no one ever knew what the real outcome was.
Also to be avoided, in my view, is the multi-option question, from which no clear winner might emerge and which almost inevitably will lead to a second referendum.
During the course of the Referendums (Scotland and Wales) Bill, there was considerable debate on who the electorate should be. I am pleased that the noble Lord. Lord Mackay of Ardbrecknish, will respond to the debate. He cited the view of the commission that the electorate should be as for a general election, plus Members of your Lordships' House. I do not believe that Members of the House were given the right to vote just because there were two Peers sitting on the commission. The reason they were given that right was because they can vote in local elections and it was felt that that was the right course to take.
Of course, the make-up of an electorate is important, but of equal concern to the commission was the state of the electoral register and the number of people debarred from voting. This has been another concern of mine over the years, so I am delighted that the Government are seriously considering how to overcome the problem which I regret the previous government failed to do, even though concern was expressed by all the main political parties, including the Conservative Party.
Doubts about the accuracy of the register raise particular problems if there is a requirement for a qualified majority. The commission was clear that the question of thresholds was a political decision, but it said that a simple majority of those who cast their votes carries natural authority.
I feel that if we are going to encourage greater participation in our democratic process, we should never allow those who stay at home to have more influence than those who go to the trouble to vote. There is no basis for assuming that everyone who says "don't know" means "no". I am sure I shall be corrected if I am wrong, but I believe it was Winston Churchill who said that a majority of one is a majority. If that can apply to determine a government, it can surely apply to a view on a specific issue.
To quote the Neill Committee Report on funding,Neither side should be prevented from expressing a view merely as a consequence of relative poverty".The report is right to recommend that there should be core funding for both sides and that the election commission should be responsible for its allocation. It is right to request audited accounts from those in receipt of such core funding and to say that there should be a declaration of donations over £5,000. I appreciate the difficulties, but I would have liked to see a cap on overall expenditure and greater control on the spending by outside bodies.
But, as the noble Lord, Lord Hayhoe, said, the main area of controversy arising from the report is that of the role of government. In paragraph 12.21(2) the Neill Committee uses the very good analogy of the Government's being expected to play the role simultaneously of umpire and active player, but 1209 somewhat contradicts that view later in the report when it says that referendums should be treated for these purposes as though they were a general election campaign.
In the latter statement there is no recognition that a referendum campaign will be conducted during the active life of a parliament and that, dependent on the subject in question, might on a day-to-day basis have to deal with allied matters. The noble Lord referred to this lack of clarity, which means that much greater consideration needs to be given to the role and influence of government, government departments and the Civil Service, factors which need to be taken alongside the decisions that the Government themselves must take, including matters such as whether there should be collective Cabinet responsibility, whether the referendum should be advisory or mandatory and its timing.
All those factors raise questions for the election commission in its work, not least in the publishing and circulating of information giving both sides of the argument. This specific role is absolutely crucial to government, in that it forestalls any criticism of the Government for protecting their own position.
This is a huge subject, and for "election freaks" like me it is an interesting one. There is only a very short time available to try to do it justice today; many more points could be discussed. For instance, there is the question of the introduction of a generic Act, which might not be an issue after we have seen the Bill arising from the Neill Committee Report. There is also the important and hotly disputed question whether referendums should be pre-legislative or post-legislative, seeking support for legislation already passed by Parliament.
Referendums in the United Kingdom also need to be considered in the context of parliamentary sovereignty. It is perhaps worth quoting the best formulation of the constitutional position, which was made by my noble friend Lord Glenamara, then Edward Short, as Lord President of the Council and Leader of the House of Commons, before the 1975 referendum. He declared that the Government "will be bound" by its result, but Parliament, of course, "cannot be bound".
I am sure that this dialogue will continue, and I look forward to seeing what the Bill arising from the Neill Committee Report has to say. But, whatever the outcome of these deliberations, what is crucial is that the integrity of the referendum process be maintained. It is a process that I believe absolutely will be improved by the establishment of an independent election commission which takes responsibility for its conduct.
§ 3.34 p.m.
My Lords, I, too, start by thanking my noble friend Lord Hayhoe for introducing this short debate. Like the noble Baroness, Lady Gould of Potternewton, I welcome it and find it very timely. I should say at the outset that I support the general thesis that my noble friend set out. I am delighted that both the noble Baroness and the noble Lord, Lord Holme of Cheltenham, are taking part in the debate.
1210 As my noble friend said, referendums are a relatively new constitutional device for us, and it seems clear that they will be used increasingly. As we know, at the present time constitutional issues are well up on the political agenda, if not at the top, and referendums are frequently used as part of the testing of public opinion over new arrangements.
Like others, I have been concerned that there is a danger that as we move to more referendums the public at large will no longer believe in representative democracy as we have always known it, which most of us would think has served the country well for hundreds of years. Frequent referendums could well have the effect of weakening Parliament and weakening government. But, as the Government themselves have said, people want a more direct say in matters of the day.
Perhaps there is a certain irony in this debate. We are discussing referendums just at the moment when we are also debating the future of your Lordships' House, when the Royal Commission is deliberating on stage two, and when the Scottish Parliament and the Welsh Assembly are just starting. So there are considerable new democratic institutions concurrent with the whole question of referendums.
I was interested to read the Question, already referred to, of my noble friend Lord Mackay of Ardbrecknish to which the noble Lord, Lord Williams of Nlostyn, replied quite recently. The noble Lord said that the Government were to publish a draft Bill on referendums before the House rose for the Summer Recess with a view to having controls in place before the next general election. It would be immensely helpful to the House today if the noble Lord could tell us more of the Government's thinking on this very important issue.
One specific point immediately comes to mind. If it is the intention to have referendums before the next election—for instance, on possible English regions or to do with local government—does that mean that there will be no proposals in place governing the way in which those referendums are run? This is very important.
There is, as my noble friend said, an enormous amount of evidence to guide the Government and all of us. The report of the constitutional commission under Sir Patrick Nairne has been referred to, as well as the reports of the noble Lord, Lord Neill and the noble Lord, Lord Jenkins. So the debate is timely and there is much information.
We have had the experience of four referendums since 1997, and more are in prospect. The most important will undoubtedly be that on the single currency. This has already given rise to many questions, not least in your Lordships' House, and, knowing my noble friend Lord Peyton, I am sure he will be assiduous in pursuing the matter.
There is also a great deal of public disquiet, if the newspaper correspondence columns and comment by political commentators are a guide. I profoundly believe that the public—all of us—have a right to know how such an immensely important referendum is to be conducted. After all, there can be no more important issue facing the country into the 21st century.
1211 Leaving aside that immensely important referendum, we have possible referendums over the English regions; possible referendums, I understand, in local government on local issues; and, of course, a possible referendum on proportional representation. Underlying the concern is very much a political concern. It would be a problem for any government of any political complexion. It is this. If the Government, on going into a referendum, are seeking a particular outcome, those who do not agree with the issue will feel very aggrieved unless the whole system for having the referendum is seen to be transparently fair to all the parties.
That is the fundamental issue that concerns us all. Our experience of recent referendums is not entirely happy. In the referendums in Scotland and Wales a strong case was made at the time that they should have been post-legislative, so that the electors would have had a far clearer idea of exactly what they were being invited to vote upon. Others, including the Neill Committee, feel that there should be a threshold of votes to be cast, particularly in a situation such as that in Wales where the results were exceptionally close or, as in the case of London local government elections, where there is a very low turn-out of only 34 per cent of the population entitled to vote.
Turning to the sort of difficulties which could arise in relation to referendums for the proposed English regions, I foresee two big problems. What if each region votes and some regions want a devolved assembly but some do not? What would be the result? I am not at all clear, except that there would be total confusion. What about asking the people of the whole of England whether they want regions at all? Will that be considered? It is a serious point—and, if I may say so, it will become increasingly serious as we see the operation of the Parliament in Scotland. We had a foretaste of some of those difficulties at Question Time today. It is not a case of scoring party political points. Serious constitutional issues will arise and they need to be addressed. Those are only two obvious points; I have left aside all the other more difficult issues.
It is important that the public should be confident about the conduct of such matters. As your Lordships will know, I have recently been involved in the great debate about what I call, in shorthand, the "age of consent". A public opinion poll was published which gave completely inaccurate and misleading information. The truth became clear only if one read the whole poll and the actual questions asked. That casts doubt on polls and on other matters. When we are considering big issues such as a referendum on the single currency or on English regions—those huge and important issues will affect, in the first case, the entire population and, in the second case, the bulk of the population of the United Kingdom—we need to have a fundamental and impartial assurance about the way in which such matters are conducted.
As the noble Baroness, Lady Gould, properly said, one could discuss this matter for a very long time, given the number of important issues involved. However, some of the big issues which come to mind relate to the duration of the campaign; the public information which 1212 is to be available so that people can find out what is really involved; the campaigning organisations outside the political parties and whether or not they should receive public funding; the scope of government activity and participation and of party political activity; access to the media; and whether referendums should be held separately from general elections or, where possible, on the same day. As well as the great political and constitutional issues, many important practical points arise.
I hope very much that the noble Lord, Lord Williams, will be able to give some information about the Government's thinking on this important matter—not only because of the questions raised today, but also because I am concerned, like many others, that people are becoming disaffected with the democratic process. It is very important, where possible, to establish something which is seen to be fair between all parties and the electorate.
§ 3.43 p.m.
Lord Hohne of Cheltenham
My Lords, in following the noble Baroness, Lady Young, I should like to join her and the noble Baroness, Lady Gould of Potternewton, in thanking the noble Lord, Lord Hayhoe, most warmly for giving us the opportunity to debate this issue. I had the pleasure of serving under the noble Lord's chairmanship of the Hansard Society and I know of his deep and genuine concern about these matters of public interest. Let us make no mistake: this is a matter of public interest and is therefore particularly well suited to this short debate in your Lordships' House.
I sometimes think—this is not the digression that it sounds—that of all the contributions that the British have made to the world, the one that will be most remembered in a thousand years' time is our ability to write the rules which have made sports and games seen to be fair, enjoyable, understandable and capable of reproduction. We have a wonderful gift for writing the rules of sport. Noble Lords may choose their own sport—tennis, rugby, football or polo—and they will find that it is likely that the British codified the rules of the games which the whole world now plays.
However, when it comes to the constitutional sphere, swathed as we are in this country in complacency, the rules of public life in Britain often seem to owe more to Alice in Wonderland than to the Lawn Tennis Association or the Rugby Football Union. The rules of the political game, which after all is the most important—in Britain, that is saying a great deal because if it is a "game" it must be extremely important!—often seem to depend ultimately on the Government telling us that the rules mean exactly what the Government want them to mean. That really will not do because the rules of the political game decide the level of confidence which our fellow citizens have in their ownership of the political system.
Like other noble Lords who have spoken, I think that we probably have to accept that referendums are here to stay. Indeed, I would probably go further than the noble Lord, Lord Hayhoe, on this. Referendums are now a feature of the British political system. The 1213 1975 referendum on the European Community, which at the time seemed to be a one-off but which was followed by the referendum on Scottish devolution, has now been followed in the space of this Parliament by the four referendums introduced by the Government. Therefore, it is now clear that that 1975 referendum was not a one-off and that we are now ready to use referendums.
I agree with Professor Bogdanor, who was quoted by the noble Lord, Lord Hayhoe, that the utility of referendums is particularly high in the constitutional area. They secure a higher level of consent, and therefore of legitimacy, than is necessarily possible through a parliamentary majority, particularly when that parliamentary majority may have been achieved in an electoral system in which the Government's majority represents only a minority of the people. Therefore, as far as the rules are concerned, I believe that referendums are helpful when deciding major constitutional changes. If I understood correctly the noble and learned Lord the Lord Chancellor the other day, I think that I probably go further than him because his support for constitutional referendums seemed more qualified.
As both the noble Lord. Lord Hayhoe, and the noble Baroness, Lady Gould, said, I too was a member of the Commission on the Conduct of Referendums, which was established by the Constitution Unit and the Electoral Reform Society under the chairmanship of Sir Patrick Nairne. It is worth dwelling on that for a moment because in an earlier incarnation as a senior Whitehall official, Sir Patrick was responsible for—and should take much of the credit for—the well understood and relatively efficient administration of the rules of the 1975 referendum on membership of the EC. Under his leadership, our commission was particularly well informed on that one example.
Noble Lords who have read that report will know that we recommended an independent referendum commission. I believe that that is the gist of what the noble Lord, Lord Hayhoe, is seeking. Now that the Government have come out in favour of an independent election commission and propose to introduce legislation on that, I am fairly persuaded that the independent referendum commission should be a sub-set of that independent election commission. That is its most obvious locus. The noble Lord, Lord Williams, has been asked to respond generally to what may be in that legislation, and I should be interested to know whether he agrees that the election commission would be the natural home of a body overseeing referendums as well as elections.
I believe that there has been some misunderstanding on this aspect of the Neill Cornmittee"s report. Your Lordships will recall that the Government and the Home Secretary substantially agreed with that report. The one tremor was over the: slue of referendums. I do not know whether that was what one might call wilful misunderstanding or confused drafting in the report. It could be either. When the Minister replies can he confirm my understanding of the position, which is that the governing party will normally have a view on the question on the referendum? The Government must hope that Cabinet members will support that view. The governing party will have a view and will put it forward. 1214 But, equally obviously, the Whitehall machine must not and should not be deployed behind the Government's view as the governing party. I should be grateful if the Minister could confirm that understanding when he replies to the debate.
The key difficulty in the Nairne Commission report and in thinking about how to achieve above-board, well-argued referendums concerns the formation of what one might call umbrella campaigns. That is the encouraging point about the European referendum campaign. There were clear umbrella campaigns and therefore it was easier to see it as a straightforward binary choice with organising centres which could be assisted in various ways. That was not the case in the recent Northern Ireland referendum. There was no umbrella campaign for the Good Friday agreement. One does not have to look far to understand the reasons. It would have to unite extreme militant republicanism with Dr. Paisley. We can see why there was not an umbrella campaign for a "no" vote.
If it is possible to have clear protagonists for and against and the organisation which is necessary for umbrella campaigns, then I believe that the Nairne Commission conclusions would flow from that. As that report said, it is appropriate that some core funding should be available to both sides of the argument so that, financially, the minimal argument is capably put. Incidentally, I do not agree with the noble Baroness, Lady Gould, about a ceiling on expenditure. We discussed that matter in the commission. It would be very difficult to enforce. I would agree with her more if core funding was available to, say, the poorer of the two protagonists.
There is also the issue of TV broadcasts. I make it plain that I am not speaking as deputy chairman of the ITC, but for myself. If there were two umbrella groups, it would be very difficult to resist the conclusion that they should both receive a certain amount of free broadcasting time.
The potential referendum on the euro has been mentioned several times this afternoon. On such an important issue of public interest, and about which there is a great deal of ignorance and misunderstanding—and I speak as someone in favour—it would be inconceivable and I would be horrified if television broadcasting was not available to both sides in that debate in order to advance the arguments and public understanding of the issues.
Finally, I hope that the Government will take the advice of the Nairne Commission and that given by the various speakers so far in this debate about taking the rules of the referendum game very seriously. If we are to have them—and the Government seem to be committed to referendums—we must ensure that they are seen to be fair by our fellow citizens. If we do not do that, I believe that the democratic price to be paid will be very high. I shall be particularly interested in the noble Lord's response at the end of the debate.
§ 3.53 p.m.
§ Lord Norton of Louth
My Lords, I too welcome this debate. I congratulate my noble friend Lord Hayhoe 1215 on introducing it. As has already been mentioned, it is a timely and topical issue. We have heard that there are already three reports in the public domain; namely, those of the Nairne Commission, the Neill Committee and the Jenkins Commission, which recommended that there should be an independent body to oversee the conduct of referendums. As my noble friend also mentioned, there is the Referendums Bill in the other place, introduced in March as a Private Member's Bill with cross-party sponsorship, to create an independent commission.
Referendums are rather strange and controversial phenomena. They come in different shapes with different purposes and rules. In their book Referendums Around the World David Butler and Austin Ranney show that over the past 200 years there have been a little over 800 referendums held at national level. Just over 400 of them were held in Switzerland. A number of countries hold them on a regular basis, but they are few in number. However, the occasional use of referendums is common and increasingly so in democratic states. There has been a marked increase in their use in recent decades. As has been said, we have seen that in our own recent history.
As the noble Baroness, Lady Gould, mentioned, referendums have been variously proposed throughout the past century in this country. There is nothing new in their advocacy, but what is new is their use at national level. That, of course, is confined to the past 25 years. However, we have now experienced them and it is likely that we shall experience more of them in the future, as my noble friend and others have said. All three party manifestos for the last election were committed to holding referendums in certain circumstances.
My noble friend Lord Hayhoe said that there are powerful and principled arguments against using referendums. They are quite persuasive. Unlike my noble friend, I have not shifted my position over the years. But the principle that my noble friend touched on is not central to the debate this afternoon but rather the practice. If referendums are to be held—in certain circumstances that will happen—it is vital that they are subject to rules that are both clear and, equally important, consistent.
As a matter of equity there have to be rules which are generic. There has to be consistency and hence predictability across referendums. If Parliament prescribes one set of rules for one referendum and a different set for another, then the legitimacy of the exercise is undermined. There has to be some guidance and framework which determines as well the issues on which referendums can be held. The subject matter of referendums elsewhere tends to be constitutional, territorial and moral issues. On occasions there are other disparate topics such as whether or not one should drive on the left-hand side of the road.
The referendums held within the United Kingdom have been on constitutional and territorial issues although we have experience, primarily in Wales, of local referendums on moral issues. Do we wish to hold national referendums on moral issues? Do we wish to make all changes to our constitutional arrangements 1216 subject to referendums? Precisely where do we draw the line? Drawing a line is important. If we do not do so, then there is the danger of impugning the legitimacy of those measures which are not subject to a referendum. It is thus in Parliament's own interest to define what may or may not qualify to be placed before the electors in a referendum.
There is, of course, an overwhelming case for fairness within each referendum. As has already been touched on, there has to be fairness in the conduct of the campaign. There has to be some equity in terms of campaign funding and access to the broadcast media. We are familiar with the imbalance in terms of the resources poured into the campaign in the 1975 referendum when those supporting a "yes" vote outspent those campaigning for a "no" vote by a margin of about 10 to one. We are familiar with the problems of funding in the campaign in Wales in 1997. There has to be equity within each referendum as well as consistency from one referendum to another in terms of what is permitted.
The need for equity in funding has been covered authoritatively and clearly by the Neill Committee and I do not propose to repeat the proposals, not least since they have already been touched on. Clearly, as the committee recognises, there is a need for an independent body, a commission, to administer the regime that it proposes.
In the time available to me I would like to comment on two of the features which, to my mind, put beyond question the case for an independent statutory commission, which has already been touched on by the noble Baroness, Lady Gould. Both relate to the question that is to be put in a referendum. Clearly, there is a need for the question to be fair. In the context of this debate, to ensure that the question is as fair as possible is quite a demanding task. It is not something that can be easily achieved by the two sides of either House agreeing on a particular question.
One study carried out at the time of the 1975 referendum found that a variation in the wording of the question could substantially affect the outcome. Therefore, to get the wording right is vital and is a time-consuming exercise; it is not something that can be easily done within a parliamentary forum.
The Commission on the Conduct of Referendums recommended that the wording of the question should be short and simple and also unambiguous. That has nothing to do with the fairness of the question; it is concerned solely with understanding. To ensure that a question is not open to alternative meanings is not easy to do in a debate on the Floor of the House. A question may need to be subject to a number of pilot surveys to determine that the meaning is understood.
Studies of state referendums in the United States have found the phenomenon of the mistaken vote, one example of which was given by the noble Baroness, Lady Gould. Voters can misunderstand the question, especially when to oppose a policy entails voting "yes". In such cases it was found that the proportion of voters casting mistaken votes could be between 10 and 20 per cent of those voting. Any claim of bias or 1217 ambiguity in a question can mean that in a close contest the result is open to challenge. That serves to undermine the whole process of the exercise.
In most of the 800-plus referendums to which I refer the results are not close, but there are some exceptions in western Europe and in our own experience, for example in Scotland in 1979 and Wales in 1997. The Home Secretary has accepted the recommendation of the Neill Committee that an electoral commission should be created and a draft Bill is promised for the summer. However, the Government have not been altogether forthcoming as to the role of the commission in respect of referendums. I appreciate that the Government are consulting on the role of the commission. However, in the other place the Home Office junior Minister, George Howarth, was largely non-committal in responding to the Referendums Bill. He failed to answer the question, which was posed more than once, whether the Government would give a commitment not to introduce proposals for another referendum until rules governing the conduct of referendums were in place. I believe the noble Lord, Lord Williams, will accept that that is a fair and largely unambiguous question that deserves an answer.
For the Government surely there is obvious appeal in the establishment of rules and a commission to advise upon and police them. Rules and an independent commission confer legitimacy on the holding and conduct of a referendum. The outcome is more likely to be accepted as legitimate than would be the case if the referendum was the product of a particular Act introduced by the Government and subject to provisions that did not apply to earlier referendums; in other words, it would be more acceptable than the present situation. In short, it is in the Government's own interests to accept the proposal.
§ 4.3 p.m.
Lord Campbell, of Croy
My Lords, I am also very grateful to my noble friend Lord Hayhoe. I thank him for raising a subject that I believe needs very urgent examination. The case has already been made for an independent commission to supervise. We have advice from at least two reports. First, the report of the Commission on the Conduct of Referendums established by the Constitution Unit and the Electoral Reform Society—both separate from central government—contains many useful recommendations and 20 guidelines. As already mentioned, that was chaired by Sir Patrick Nairne who, as a senior member of the Cabinet Office, was in charge of the arrangements for the 1975 referendum on Europe. We also have the more recent fifth report of the Committee on Standards in Public Life chaired by the noble and learned Lord, Lord Neill. Both reports recommend a commission to keep the situation under review and to make recommendations on referendums.
My noble friend Lord Hayhoe referred to several matters in the two reports. In his report the noble and learned Lord, Lord Neill, recommended an election commission with a wider field—because the committee had a wider remit than referendums—to cover ordinary 1218 elections as well. There are striking comments in the report of the Neill Committee that the first referendum in 1975 was better organised and fairer than the later ones.
I agree with the noble Lord, Lord Holme, that Sir Patrick Nairne deserves much credit for his part, but I should like to add the name of the noble Lord, Lord Allen of Abbeydale, who had just retired as Permanent Secretary at the Home Office and who was described as the chief counting officer in that first referendum in 1975. As the noble Baroness, Lady Gould, reminded us, the position was concisely described before that referendum by the noble Lord, Lord Glenamara, then Leader of the House in another place; namely, that the Government would be bound by the result of the referendum but that Parliament would not be. That was correct in the case of the 1975 referendum.
When the referendum Bills on Scotland and Wales passed through this House noble Lords may recall that I moved an amendment, which provoked considerable debate, to insert the word "advisory". As I made clear, it was not my intention that that word should necessarily be inserted into the Bill, but it was possible for the Government to confirm that in that case both they and Parliament would consider the matter as advisory and that the Government in that case were not bound. Because of the very close result in Wales the Government could have acted differently from the way that they did. Perhaps the Minister when he comes to reply will confirm my understanding that in any referendum the position is likely to be that it is advisory to Parliament but it may or may not be advisory to the government of the day; they may regard it as obligatory.
There are several referendums now in prospect. Whether they are necessary or desirable is not for me to discuss today. However, I see distinct possibilities of even more referendums in Scotland and Wales. Owing to the methods of proportional representation by which the Scottish Parliament and Welsh Assembly have been elected, coalitions or executive councils without overall majorities are likely to be normal, certainly in Scotland. If in Scotland controversial matters arise, such as tuition fees and beef on the bone, decisions will be difficult and this is likely to be demonstrated in the next few days and weeks as such. More issues of that kind will arise.
In Scotland another election cannot take place for four years. Under Section 2 of the Scotland Act 1998 another election cannot be called before four years have passed. These elections are for a fixed term.
It is important for referendums in different parts of the United Kingdom that a commission should supervise them. In the recent election for the Scottish Parliament, many objections were raised about Scots who were not eligible to take part. In the recent referendums in Scotland, electoral registers were used but it was impossible for Scots temporarily resident outside Scotland for a year or more to register their vote. Similar complaints were raised after the March 1979 referendum in Scotland. I referred to them in a debate which I initiated in this House two days after that polling day.
The point is best illustrated by the case of the captain of Scotland's football team, Gary McAllister, who was resident at the time in England because he was playing for 1219 an English football club. He was unable to take part in the Scottish referendum, but the player who scored the vital goal for England in the key match against Scotland at Wembley, Paul Gascoigne, was resident in Scotland and eligible to vote because he was playing for Rangers for three or four years at that time.
Many Scots are resident outside Scotland for a year or more because of their jobs or other valid reasons. Furthermore, registers for recent referendums have been nearly one year out of date. During the passage of legislation over the past two years, Members of the Government have spoken of the will of the Scottish people, but at least half those who would describe themselves as Scottish people were living outside Scotland. The noble Lord, Lord Sewel, changed his wording as the legislation proceeded and used the term "people in Scotland". I congratulated him because that is an accurate description of the electorate in Scotland, which includes many residents who are not Scottish who were able to take part in the referendum.
I draw particular attention to recommendations of the Neill Committee, although I do not have time to expand on them. First, the question must be clear. In the Scottish referendum it was not called a question but there were two "propositions". A reasonable interval should be arranged between the announcement of a referendum and polling day. A code should be agreed for methods of core funding for both sides. There should be rules for the media and, in particular, fairness in broadcasting opportunities. The Government should not contribute in kind to one side or the other—for example, the services of civil servants in producing leaflets or other documents; cars; or information offices. Audited accounts for core funding should be produced within three months of polling day.
I commend those particular recommendations of the Neill Committee. Even if the Minister is not in a position to say much today, I hope that the Government will take those recommendations extremely seriously and that we will before long have a commission with responsibilities for carrying out referendums, which can then be regarded as completely fair.
§ 4.13 p.m.
§ The Earl of Northesk
My Lords, I congratulate my noble friend Lord Hayhoe for bringing this matter to our attention and for the eloquence of his introduction to our debate. I make my position clear at the outset. I do not like referendums although, as my support for the amendment of my noble friend Lord Campbell of Alloway to the House of Lords Bill attests, I can accept that referendums may be justified where major constitutional change is being considered.
It is rare that I find myself claiming common cause with Mr. Tony Benn but in this matter I have no hesitation. On "Newsnight" a little over a year ago, the right honourable gentleman said:Plebiscites were actually the instruments of dictators. I am not drawing a parallel. You've got to give people a choice. You've got to be able to amend things, and this direct democracy has got a rather unpleasant 1930s flavour about it".1220 Jeremy Black, Professor of History at Exeter University, endorsed that sentiment on the same programme:I think the historical precedents are in some ways rather alarming. Plebiscites, reaching out to the people, directly circumventing representative assemblies in some way or other, is often what totalitarian regimes do".I do not dissent one iota from either of those views.
I find myself tempted into one of the threads mentioned by the noble Baroness, Lady Gould of Potternewton. In our debates on the House of Lords Bill, much emphasis has been placed by members of the Government Front Bench on the concept of parliamentary sovereignty. On the surface, I do not doubt its efficiency or its effect, albeit that I would qualify that concept with this thought:Ministers talk as if the House of Commons were a sovereign body—a sovereign body under His Majesty, the King; but, in fact, the House of Commons is not a sovereign body at all. It never has been. There is only one sovereign under His Majesty the King, so far as I know, and that is the broad mass of the British people"—[Official Report, 27/1/48; cols.644–647.]Perhaps, ironically, that comment is from the grandfather of my noble friend Lord Cranborne when he spoke on Second Reading of the Parliament Act 1949. I cannot help feeling that it has some relevance to our debate. It suggests inescapable tension between the concept of parliamentary sovereignty as currently espoused and the use of referendums. Viewed logically—and I pick up on some of the points made by my noble friend Lord Campbell of Croy—if it is not to challenge the concept of parliamentary sovereignty, a referendum can only ever be advisory. But, equally, any referendum that is not mandatory challenges the sovereignty of the people.
It is possible to square that circle provided that the dilemma is confined to the legislature—to Parliament. But the current fad for referendums includes a shameful partiality for the pre-legislative version. Those are the toy of the executive. Not only do they rob the public of the opportunity to make an informed decision; they severely curtail Parliament's ability to scrutinise legislation properly and effectively. The referendums on Scottish and Welsh devolution and on a London mayor, particularly in light of the low turn-outs for the latter two, demonstrate the point.
For all parties, politics and its presentation to the electorate have by and large been reduced to the status of product. Public meetings have been replaced by the glitz of the television studio. The hustings have been squeezed out by the sound bite. Politics has by definition always been reliant upon the vagaries of public perception. There is nothing new in that. Relatively new to British tradition is the huge emphasis on the image of politics as opposed to its substance. It is as though—and here I owe a debt to my noble friend Lord Birdwood—the eyes of politics have met those of marketing across a crowded room. The ardour of that infatuation shows no sign of cooling. My noble friend Lord Chadlington revealed in a debate a month ago:New Labour has spent £22 million on focus groups—three times what the former Tory Government spent—including £500,000 to run the People's Panel".1221 Later he said:The Government are now set to outspend Coca-Cola on TV with a budget of over £80 million for public service advertising. In the past 12 months, there have been 28 separate government campaigns on TV and 106 different campaigns in the national press—a 35 per cent increase in advertising expenditure at the COP'. —[Official Report, 17/3/99, col.763.)However sensible and reasonable this may be in our media age, the difficulty is that it cart take, and may well be taking, the governing out of government. The fact is that government is not, or should not be, a crude exposition of quasi-managerial skills. More often than not "good government"—if it can be so crassly quantified—is about "doing the right thing for the right reasons" irrespective of populist considerations. It has about it an essential moral dimension which can never be satisfied by vulgar supplication to the gods of market share. And yet, both it and the politics which gives it its being are becomingly increasingly managerial in scope and character. Disturbingly, they are becoming ever more commercial, ever more oriented towards market research. At their simplest, referendums are no more than the big sister; of focus groups which, as Janet Daley has correctly identified, are,a way for individuals in authority to avoid responsibility for any Judgement at all".That is the great risk of their inexorable rise and rise: that government and politics become no more than items on an administration's profit and loss account of populist standing.
Whatever our misgivings about the use of referendums, we have to accept that they are very much in vogue at the moment, both at national and local level. It may even be, as suggested by the noble Lord, Lord Holme, that they are here to stay. A number of hugely significant issues--not least electoral reform and EMU—loom on the horizon. It is crucial that these issues should be dam-mined as fairly and on as informed a basis as possible.
As Mark Henderson observed in The Times only yesterday,As both Napoleons understood, the referendum is a powerful but blunt political weapon that is easy to manipulate. With proper safeguards—a simple, balanced question and even-handed campaigning—it can be a valuable democratic tool. But leading questions and one-sided propaganda can manufacture consent. And leading questions with cne-sided propaganda is what we have got".My noble friend's Motion promotes,the case for establishing an independent statutory commission responsible for the conduct of referendums, their organisation and administration".Against the background I have defined, that case is not only overwhelming; it is imperative as a matter of urgency.
§ 4.22 p.m.
§ Lord Goodhart
My Lords, like the other speakers in the debate, I welcome the decision of the noble Lord, Lord Hayhoe, to put this important subject forward for debate. I am a member of the Neill Committee, and was a member of that committee when we prepared our fifth report on party political funding which has been widely quoted in this debate. The Neill Committee regarded 1222 referendums originally as peripheral to our remit but, as a result of the evidence we received, in particular from places outside England, we came to regard them as more central than we had at first thought.
The first major referendum in the United Kingdom was the Northern Ireland referendum in 1973 on the future of Northern Ireland as part of the United Kingdom. In 1975, as we all know, we had the first and so far the only United Kingdom-wide referendum on whether or not to remain in the EEC (as it then was). Since then we have had the devolution referendums in Scotland and Wales in 1979, and again in September 1997. We had referendums in May 1998 for the approval of the Good Friday agreement in Northern Ireland; and on a new system of government for London.
However, the holding of those referendums has been unregulated by law. For referendums there is nothing comparable to the Representation of the People Act for parliamentary elections. Mr. Peter Riddell, the highly respected political editor of The Times described the procedure for referendums in his evidence to the Neil Committee as, "chaotic and unfair". That is undoubtedly an accurate description. If referendums are to be a permanent part of our political system—and they probably will be—then there must be appropriate rules to govern them.
As the noble Lord, Lord Campbell of Croy, pointed out, the 1975 referendum was to a considerable extent a model of how referendums should be conducted. It involved a number of key elements including, first, the delivery to every household at public expense of a statement of the case for and against remaining in the EEC; secondly, the granting of free broadcasting time on an equal basis to the "Yes" and "No" campaigns; thirdly, core funding to each campaign of an amount which updated in real terms would now be about £600,000; and, fourthly, disclosure of all donations over the sum of £100.
That model, sadly, has not been followed in subsequent referendums. In none of them has there been the provision of core funding or a free mailshot. In none of them have the rules about disclosure been applied. In 1979 in Scotland the television companies were prepared to give referendum broadcasting time to each political party. That was blocked by the courts when the Labour Vote No Committee objected that this would mean there would be three "Yes" broadcasts and one "No" broadcast. In that context, that decision seems to me plainly correct. with great respect, but the result has been that since then there have been no referendum broadcasts.
One of the differences between the 1975 campaign and later referendums was that in 1975 it was a more cross-party campaign. Both the Conservative and Labour parties were split; and both supporters and opponents were willing to work with like minded people in the other parties. As a result identifiable umbrella groups were formed, and these were able to receive core funding, produce leaflets for a mailshot and programmes for referendum broadcasts.
1223 Subsequent referendums have been held more on party lines. In 1997, in Scotland and Wales the Labour Party, the Liberal Democrats, the trade unions and the nationalist parties ran parallel but separate yes campaigns. The Conservatives, having lost all their MPs in Scotland and Wales, were, frankly, punch drunk and took little, if any, part in the campaigns. The result was that there were no effective "No" campaigns. In Scotland, as is shown by the size of the majority in favour of devolution, it would clearly have made no difference. In Wales it might have done.
When the Neill Committee sat in Cardiff we discovered the extraordinary situation which the noble Lord, Lord Hayhoe, mentioned. There would not have been a "No" campaign but for the efforts of two individuals unknown to the general public: Mrs. Carys Pugh and Mr. Robert Hodge. Mrs. Pugh is a local Labour activist who was opposed to devolution. In the absence of anyone else doing so, she decided to start up a "No" campaign herself. In order to do so, she borrowed £5,000 from her bank. She wrote to the late Lord Tonypandy who sent her £100 and put her in touch with Mr Hodge, son of Sir Julian Hodge the well known financier. Robert Hodge put up £90,000 of his own money; and that amounted to almost the whole of the no campaign funds. On that sum they were unable to create a proper organisation or to distribute at their own expense literature across 40 parliamentary constituencies. There were, of course, no referendum broadcasts, although the "No" campaign said that it was fairly treated by the broadcasters who gave them equal time in news broadcasts.
Despite that inequality of arms, the "No" campaign came within a whisker of winning. If it had had core funding, a free mail shot, and referendum broadcast, it could well have won. The Neill Committee felt that that was seriously unfair. Referendums must be fair. Fairness requires that the voice on both sides must be heard. That voice need not perhaps be equally loud. The committee rejected limits on campaign spending although that recommendation is controversial. But public core funding and a free mailshot must be provided.
Of course, as my noble friend Lord Holme of Cheltenham, has pointed out, the key to that is the formation and recognition of umbrella groups on each side. That may not always be possible. As my noble friend said, in the Northern Ireland referendum on the Good Friday agreement, we cannot imagine Sinn Fein and the Ulster Unionist Party joining in the common "Yes" campaign, still less the Democratic Unionists and the republican splinter groups joining in a "No" campaign. But it will usually be possible to form umbrella groups in a referendum on joining the euro or in changing the voting system for the House of Commons. I do not see why it should not be possible to form umbrella groups, but the Government should not be responsible for identifying the umbrella groups if there is uncertainty as to which to choose, and especially where the Government themselves have strong views on the issues.
1224 This is one place where an independent commission comes in. A commission can identify in cases of doubt which umbrella group qualifies for core funding. A commission can audit the spending of core funding. A commission can make arrangements for a free post. A commission can negotiate with the broadcasting authority for referendum broadcasts. A commission, if there is a dispute over the form of the referendum question—and this is a very important issue indeed—can decide. The commission can monitor the conduct of the campaign. If spending limits are imposed the commission can enforce them. Even if there are no spending limits the umbrella groups should be subject to the same rules of disclosure and bans on foreign contributions as are political parties. That again will be much easier to enforce if a commission exists. Organisations which spend money on a referendum campaign outside the umbrella groups—and clearly there will be organisations which wish to do so—should be required to register with the commission and to provide the commission with accounts of their spending.
It is clear in my view that the commission responsible for referendums should not be a free-standing body; it should be an election commission with responsibilities going beyond referendums. Referendums happen at irregular and sometimes lengthy intervals. For example, we had no fewer than four in different parts of the United Kingdom in the eight months between September 1997 and May 1998. There may well be no more referendums in the life of this Parliament. A free-standing commission would involve short bursts of hectic activity and long periods of the twiddling of thumbs.
One of the central recommendations of the Neill Committee was for the creation of an election commission to oversee rules on donations and limits on campaign spending. That recommendation has been widely accepted and indeed the Newark case has made the need for an election commission even more obvious than it was before. The election commission clearly, in my view, is the right body to oversee the conduct of referendums. I welcome this debate and hope to see the recommendation of the Neill Committee on referendums incorporated into the draft Bill which the Government have promised for circulation later this year. I hope that those recommendations will be in effect when in this country we next come to have a referendum.
§ 4.33 p.m.
§ Lord Mackay of Ardbrecknish
My Lords, I am particularly grateful to my noble friend Lord Hayhoe for giving us the opportunity to have this debate. There are two reasons for my gratitude. One is that it is nice to find oneself entirely on the winning side. Not a single speaker has cast any doubt on the proposition, and I hope that will continue for the next 30 minutes so that we can embrace the Minister in this unanimity as well. The second reason for gratitude is that it allowed me to go to my files and brush down the speeches I made during the passage of the Referendums (Scotland and Wales) Bill in the summer of 1997. I am really impressed that today my noble friend has managed to bring into the debate the noble Baroness, Lady Gould 1225 of Potternewton, and the noble Lord, Lord Holme of Cheltenham. I cannot honestly remember that I was ever able to draw them out very much in the course of the referendum debate in the summer of 1997.
One thing about the debate on that Bill is that during its passage I raised a number of amendments: the general issue of the conduct of referendums and why we should legislate for referendums in exactly the same way as we legislate for general elections. Much of the detail of the running of the two referendums in Scotland and Wales was contained in two schedules to that Bill. which were actually placed there at my suggestion rather than being treated as pieces of secondary legislation.
The schedules were amendments to the Representation of the People Act and were frankly unintelligible unless read together with that Act. At the time I expressed my concern about this method of laying out the detail, and expressed the hope that if the Government intended to hold any more referendums they would bring forward a general referendums Act which would be self-standing and not, as happened in the 1997 Act, very much a cut-and-paste job.
I may say that exactly the same problems arose earlier this year on the legislation setting up the Scottish Parliament and the Welsh Assembly, where the electoral procedures were very much stitched on to the Representation of the People Act. It did not matter too much for the first-cast-the-post elections, but it mattered hugely for the top-up; and again it was a cut-and-paste job which was hugely unsatisfactory and, I may say, led last Friday in Lothian to a shambolic procedure that occurred in the count for the list vote, and to some of the very problems warned the Government about.
Regarding those two referendums in Scotland and Wales, I am not going to quibble over the results, but I will simply say—and it very much supports what every speaker has said this afternoon—that the campaign, frankly, was far from being seen as fair. The "No-No" campaign in Scotland and the "Wales says No" campaign were placed at every disadvantage. To put it very bluntly, they were shafted. They were shafted by a combination of lack of money, lack of proper access to the airwaves, with the Government and the whole machinery of Government totally on one side of the argument. In fact the "Yes" campaigns in Scotland and Wales had the Gaffing gun in a very big way. In addition, the Government decided that the Welsh referendum should be held a week later, on absolutely no ground at all other than they felt that they might lose in Wales on the same day as Scotland—which undoubtedly they would have done—and if they put the Welsh referendum a week later the Welsh would feel some obligation to sort of go in behind their Celtic brethren and vote for it.
That simply was not fair. It is that kind of unfairness that can bring a referendum result into serious disrepute. We have heard about the series of committees which have all discussed referendums on wider things and have all come to the same conclusion. We have heard in particular about the Commission on the Conduct of Referendums, which I referred to very heavily during the passage of the 1997 Act. We know that the noble 1226 Baroness, Lady Gould of Potternewton, and the noble Lord, Lord Holme of Cheltenham, were on that committee.
I could use the rest of my speech to quote from the findings of the committee but I will not, other than just to quote from paragraph 47:There is now a strong case for giving responsibility for the conduct of referendums to an independent body … The functions of such an independent body might include all, or some, of the following:In the report by the Committee on Standards in Public Life, chaired by the noble and learned Lord, Lord Neill of Bladen, exactly the same issues were studied and similar, if not exactly the same, conclusions were arrived at, as has already been mentioned by the noble Lord, Lord Goodhart. Specifically, the Neill Committee recommended an electoral commission rather than just a referendums commission. Frankly, I have no problem with that, especially if we are to have different electoral arrangements for different elections to Europe. Westminster, the Scottish Parliament, the Welsh Assembly, the Northern Ireland Assembly. local government and referendums. Again, without reading it out, chapter 12 of the report of the Neill Committee specifically deals with referendums and argues a powerful and unanswerable case.
- advising on the wording of the question,
- allocating funding to campaign groups,
- liaising with and acting as moderator between any campaign groups,
- acting in an ombudsman role to deal with any complaints,
- monitoring balanced access to the broadcast media,
- providing public information, including a balance statement of the opposing arguments,
- supervising the organisations for each polling station,
- counting and declaration arrangements."
So we have two powerful and well-argued reports which reach the same conclusion; namely, that we need a commission to oversee referendums in this country. Moreover, there is a third report, mentioned by my noble friend Lord Hayhoe—the report of the Commission on Electoral Reform chaired by the noble Lord, Lord Jenkins of Hillhead, who refers to referendums in paragraphs 165 to 168 in exactly the terms which my noble friend quoted—which reaches exactly the same conclusion.
I mention one matter of detail which has been raised; that is, the question of majorities. Australia requires a majority of the voters nationally and in at least four of the six member states to vote for a proposition before it passes. In the past, New Zealand has acquired a 60 per cent "yes" vote. Italy requires a turn-out greater than 50 per cent. Indeed, a referendum in Italy just a few weeks ago, interestingly to move Italy from proportional representation to first-past-the-post, failed not because the proposition to go to first-past-the-post did not win—it did, by about nine to one—but because the referendum turn-out did not exceed 50 per cent.
I am sorry for the Italians but it is important to have some kind of fence over which one must jump. I know that the noble Baroness, Lady Gould of Potternewton, does not agree. I shall not go into the complicated 1227 arrangement which I suggested during the passage of the referendums Bill but it is important to have a balance of turn-out and majority.
The 1975 White Paper on the European referendum said: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".Those are important qualifications: the size of the poll should be adequate; and the verdict should be clear and conclusive. In Scotland, the size of the poll was adequate and the result was undoubtedly clear and conclusive. I submit that in Wales, neither of those conditions was met. The verdict was so close, it was not clear and not conclusive and the turn-out was pathetic.
I appreciated that in the summer of 1997, we could not have a referendums commission. But we should jolly well have one now. My noble friends Lady Young and Lord Norton of Louth both mentioned a Question which I tabled for the noble Lord, Lord Williams of Mostyn. It was whether the Government proposed to legislate for recommendations made by the committee chaired by the noble and learned Lord, Lord Nolan in the conduct of referendums before any further referendums are held.
The noble Lord said that the Government welcomed the main findings and so on and said that they intend to publish a draft Bill before this year's Summer Recess with a view to having controls in place by the time of the next general election. I found that a deeply unsatisfactory answer. It made me very suspicious. I did not ask whether the legislation would be in place before the next general election but whether it would be in place before another referendum is held. So, as the examiner might say to the student, will the Minister please answer the question? I asked whether the controls would be in place before another referendum is held.
We could make progress. Even as we speak, a Bill is in Committee in another place, introduced by Mr. Andrew Robathan, which is a Private Member's Bill. It is perfectly satisfactory. It is simply being hindered by the Government, but they could take it on board and help it on its way. The Bill could be with us in two or three weeks' time. Given the unanimity that there has been this afternoon, I am sure that there would he no problem getting the Bill through in this Session. We should then have a referendums commission in place, with all the necessary legislation, before another referendum took place.
I invite the Minister to answer those two questions: first, whether the controls will be in place before another referendum or before the general election; and secondly, why the Government do not take over my honourable friend's Private Member's Bill and satisfy all noble Lords who have spoken this afternoon.
§ 4.43 p.m.
§ The Minister of State, Home Office (Lord Williams of Mostyn)
My Lords, I am grateful, as always, to the noble Lord, Lord Hayhoe, for the 1228 moderate and careful way in which he introduced this matter, which is plainly of topical and important interest. Having listened carefully to all the contributions, I believe that there is benefit in every contribution which has been made, even though some noble Lords approached the issue on a much more general basis than the specific purpose of the debate this afternoon.
I believe that I correctly represent what the noble Lord, Lord Hayhoe, wanted. His basic proposition is that there should be an independent commission established with responsibilities in relation to referendums. Every contribution, from all sides, even including the noble Earl, Lord Northesk, who has difficulty with the whole concept of referendums, demonstrates widespread support for that proposition which I have reduced to its simplest.
I am happy to add my own and the Government's broad support. That does not mean that we shall agree on every point, but I affirm our belief that it is desirable and possible to achieve some consensus across all parties on the issue.
The noble Baroness, Lady Young, rightly said that we are at a time of great constitutional change. The thousand-year review of modern British history to which the noble Lord, Lord Holme of Cheltenham, referred will demonstrate something rather better than the ability to provide rules for real tennis, snooker or darts. What it demonstrates is infinitely grander. It demonstrates the continuing ability of our nations to develop our constitutional arrangements on an organic basis. It is easy to overlook that.
The noble Baroness, Lady Young. spoke of our democratic arrangements over the centuries. But that is not really the case. Universal suffrage on the basis of equality is barely 80 years old. The opportunity for intimidation because there was no secret ballot was taken away as recently as about 1870. So I repeat what I have said on earlier occasions. If one looks at the three great Reform Acts and slots in the Secret Ballot Act between the second and third, and then one bears in mind that women did not have equal suffrage until after the First World War, that is a testament to the text which I put forward earlier. We do have what may be a genius—to put it in its old-fashioned way—for constitutional change and reform. That is what keeps us alive as a functioning, vibrant democracy.
I do not share the gloomy view of the noble Earl, Lord Northesk, that referendums are only the tools of dictators. Hitler did not come to power as a result of a referendum. There are many very democratic states in the United States—for example, California—which use referendums regularly to produce the view of the populace about particular topics. Therefore, there is nothing wrong in principle with referendums, but they must be properly organised, as I said a few moments ago.
A number of specific questions were raised with which I shall try to deal. I reiterate that we want and intend to have our response, as a government, to the Neill Report in the draft Bill to be published before the Summer Recess. We are committed to early legislation, given the co-operation of your Lordships' House, on the main recommendations so that they are in force at the 1229 time of the next general election. At this stage I cannot say what will be in the Bill. As your Lordships have observed, the Neill Committee made 100 detailed recommendations. We are considering and consulting. That is the proper way forward. It will certainly contain provisions on the conduct of referendums. I hope that is of assistance to the noble Lord, Lord Hayhoe, not least with my additional comment that the basic requirement is as he contended: a fair deal for both sides in a referendum campaign.
The noble Lord, Lord Mackay of Ardbrecknish, asked whether we would support the Private Member's Bill in another place. Thai, is not the vehicle which we want to use. We want single comprehensive reform. When the noble Lords, Lord Goodhart and Lord Holme, spoke about that they were right. This is not a time to tinker piecemeal with the issue.
The noble Lord, Lord Mackay of Ardbrecknish, asked me to give an absolute undertaking that there will be no referendums before the new commission is established. Of course, I cannot give that undertaking in the nature of things. But I repeat that the draft Bill will be published before the Summer Recess. We want to legislate as soon as possible thereafter. But if a referendum were to be held in the circumstances posited by the noble Lord Lord Mackay of Ardbrecknish—in other words, before the electoral commission had been established—we should give careful consideration to how the Neill recommendations might be applied to that referendum, even though there was no extant, subsisting legislation.
Other questions have been put. The noble Lord, Lord Holme, asked a number of questions to which I hope to give answers. In particular he mentioned the fact that the Neill Committee recommended that the Government must remain neutral during a referendum. I reiterate the comments of my right honourable friend Jack Straw in another place. This is an important recommendation. It needs careful attention. I remind your Lordships that the Neill Committee stated that it was entirely appropriate for the government of the day to make their position clear on any given referendum question. That was echoed, entirely realistically, if I may say, by the Jenkins Commission.
The business of government cannot be suspended for the duration of a referendum campaign as it is for a general election, so the two are not entirely comparable. However, I repeat the important overarch that referendums must be conducted fairly as between the two sides.
The question of core funding and capping was also raised. Neill recommended, in our present day terms, core funding of about £600,000. There was reference to difficulties in the context of Northern Ireland. There are difficulties in getting Dr Paisley and other "No" protagonists in the same room, let alone agreeing to divide up the same postal order. That, I believe, would be beyond the wit and ingenuity of any of us in your Lordships' House.
There is also the question of the Neill Committee recommendation that only one campaign organisation on each side of a referendum should have the core 1230 funding. That is difficult, not only in the context of Northern Ireland. It was rightly said that Mrs. Pugh was a doughty "No" campaigner. Mr. Hodge, possibly funded by his father, Sir James Hodge. came from a different political background, as has already been identified. There are difficulties but I do not think they are necessarily incapable of being overcome. Neill, of course, did not recommend placing a cap on expenditure in referendum campaigns. It is difficult to think how that might be properly established.
I turn to a very important point in answer specifically to the noble Lord, Lord Holme of Cheltenham. I repeat the words stated by the Home Secretary: the Government favour a body independent of government and free of party political interference. The Neill Committee recommended that the body be set up along similar lines to the National Audit Office, accountable directly to Parliament, not funded from a departmental vote.
The noble Lord, Lord Campbell of Croy, raised the interesting question about the nature. advisory or binding, of a referendum. I believe the true answer is as he implied; namely, this is a political question for the government of the day. In the nature of our constitutional arrangements it seems to me that conceptually a referendum could never be binding on Parliament. It would be open to the ruling, governing party of the day to consent to be bound by the result of a referendum. The portents are not entirely favourable. I recollect recently that in a not dissimilar situation the leader of the then Norwegian Government said that if he did not secure more votes at the general election than he had at the previous general election, he would feel obliged to resign. The electorate responded in the expected way by giving him about 0.2 less and he therefore had to resign.
However, it seems to me that if a government wish to adopt a policy plank central to their continuance they are perfectly entitled to adopt that stance, I would say, on the basis that they put it unequivocally to the electorate before the referendum began.
Lord Campbell of Croy
My Lords, I thank the Minister for giving way. He has replied completely to my first point, which is that any referendum would be advisory to Parliament. On the second point, I am not sure whether his view is that the government of the day would decide beforehand and announce whether it would be advisory or obligatory for them when the results came out.
§ Lord Williams of Mostyn
My Lords, that is the political question to which I referred. It seems to me that it is constitutionally open and proper for a government to say, "This is the question in the referendum. We intend to be bound by it", and accept the consequences of failure or success as they fell. I believe that is a legitimate constitutional device. Governments' views might significantly vary in the context of the question. It seems to me that there is a difference in importance and quality between, for instance, having the devolution question for the 1231 Parliament in Edinburgh and—admittedly a subject of passionate interest when I lived in West Wales—whether public houses are open on Sundays.
§ Lord Goodhart
My Lords, the power to bind a government to accept a referendum goes a little further than the Minister said. I seem to recall in the 1979 referendum that the terms of the Scotland Act prevented the government from introducing a commencement order unless the Act had been approved by a qualified majority.
§ Lord Williams of Mostyn
My Lords, the noble Lord is quite right in his recollection. However, I do not believe that differs from the answer I gave in response to the proposition put by the noble Lord, Lord Campbell of Croy.
I was about to develop that modest theme. There are differences of importance. That is why one has, on occasions, local referendums. I certainly remember irritating such friends as I had in Swansea by telling them that I would vote "No" for the opening of public houses in Swansea on Sundays. I was able to do that safely and confidently because I imagined that most of the residents of Swansea would vote "Yes" as, indeed, it turned out they did. I therefore had the benefit of moral satisfaction as well as being able to have a drink in the public house on Sunday.
I think I have answered the detailed questions that have been put. The important point here is bound up in the general question raised by the noble Lord, Lord Holme, and the noble Baroness, Lady Young; namely, could I confirm that we as a government would pay careful attention to what has been said this afternoon? I hope that by my response, and my detailed response to the questions, I have been able to give that reassurance. This is much more important than party political advantage. If we get it right it has to stand for a long period of time. The reminder given by the noble Lord, Lord Goodhart, is important. This has to be a construction which may not be regularly used, though for my part I agree with those of your Lordships who have said that this, as a constitutional implement, is likely to be used more often in future.
I repeat that all the contributions, not least for their tone as well as their content, will be given careful attention. I very much look forward to being able to introduce the Bill in due course in your Lordships' House.
§ 4.57 p.m.
§ Lord Hayhoe
My Lords, this has been an excellent short debate, particularly in view of the widespread unanimity and consensus achieved in all the speeches. Perhaps I may say in a personal fashion that it is the sort of politics I prefer to the "yabooing" which goes on rather more in another place.
I am extremely grateful to all who have taken part in the debate, and in particular to the Minister for the positive comments he has made. I beg leave to withdraw my Motion for Papers.
§ Motion for Papers, by leave, withdrawn.