HL Deb 21 November 2000 vol 619 cc799-806

(" . Any proposition contained in a referendum to which section 99(1) applies shall be considered to have been carried only if—

  1. (a) an absolute majority of those voting cast their ballots in favour of the proposition; and
  2. (b) those voting in favour of the proposition constitute at least 40 per cent. of those eligible to vote.").

The noble Lord said: My Lords, we discussed the issue rather late at night in Committee and we are now discussing it even later at night on Report. For that reason, I do not propose to go into great detail on the arguments for a threshold requirement for referendums.

The basic argument is fairly straightforward. In parliamentary elections, we elect candidates for a set period. In referendums we have often been asked to approve something that is intended to be in place permanently. We know that we can turn candidates out of office, but there is no mechanism for triggering a referendum to overturn the result of an earlier referendum.

Referendums are qualitatively distinctive. They are not on a par with elections to public office. Imposing a threshold would ensure that a substantial proportion of the population was required to turn out and support a proposition. It would prevent an active minority determining the outcome.

In Committee, the Minister argued against a threshold. He said: Our parliamentary democracy operates on the principle that a simple majority of those voting is enough".—[Official Report, 18/10/00; col. 1179.] Indeed it does. However, referendums are not an intrinsic part of our parliamentary democracy. It is because of a profound attachment to parliamentary democracy that I am opposed to referendums. As I mentioned a few moments ago, I would prefer that we did not have them. I regard them as a threat to, rather than a reinforcement of, parliamentary democracy. If we are to have referendums, a threshold is desirable, for the reason that I mentioned.

Furthermore, we have had referendums in which thresholds have been imposed. There have been two referendums in which thresholds have been imposed and five in which they have not. There is, therefore, no consistent practice. It undermines the credibility of the political system if we have referendums in which different hurdles are imposed. I have no particular objection if the credibility of the use of the referendum is undermined, but I have no wish to see support for the political system itself undermined. I therefore favour consistency, which means having no threshold or a designated threshold. For the reason that I have advanced, I believe that a threshold is preferable to no threshold.

The other argument advanced by the Minister against a threshold being included in the Bill was that Parliament should decide whether one was appropriate on a case-by-case basis. He said: That is a matter that should be addressed, if at all, in the specific legislation providing for the referendum in question. But it is not a principle to be conceded in the context of these generic provisions".—[Official Report, 18/10/00; col. 1180.]

I have advanced the contrary proposition. In my view, there should be a generic provision. We need to ensure that the provisions applied to the holding of referendums are consistent. Such an approach is perfectly compatible with this Bill, which is all about introducing generic provisions. This Bill tries to ensure evenness and consistency for those engaged in referendum campaigns. My amendment is part and parcel of that.

Leaving the decision to be taken on an ad hoc basis can serve only to undermine the legitimacy of the process. We should therefore opt for either a simple majority to determine the outcome or a simple majority and a specified percentage of the electorate voting in favour. For the reasons that I advanced in Committee, which I shall not repeat this evening, I favour a threshold of 40 per cent of those eligible to vote. As noble Lords will be aware, there is, of course, a precedent for that.

As I have said more than once, my favoured position would be to have no referendums at all. If we are to have them, the rules relating to them need to be consistent. For the reasons that I have advanced, I believe that a threshold is desirable. A 40 per cent threshold is a modest one and one for which there is a precedent. I therefore commend my amendment to the House. I beg to move.

Lord Mackay of Ardbrecknish

I shall speak briefly to this amendment, without repeating all the previous speeches that I have made on the subject of thresholds and referendums. There are many references in the Scotland referendums Bill to which noble Lords can refer, if they wish. I firmly believe that if we are to have referendums, we should have thresholds. I do not agree at all with the Minister's view that it should be decided on a case-by-case basis. That would make it susceptible to variation due to the referendums, so that if the Government think that they will not get a very big turnout, they will drop the turnout; if they think they will get a big turnout, they will raise it. I believe that thresholds should be laid down in a generic referendums Bill. I would not impose high thresholds, and I fully accept all the arguments about that, but I believe that there should be some.

Noble Lords are always keen to look at other countries. I have previously mentioned that Italy has a threshold. In fact, the last two referendums failed, but not because huge majorities did not pile in on the side of the proposition, which was that the Italians should move to a first-past-the-post electoral system—I could not resist getting that in. The proposition was passed with a huge majority but the turnout did not meet their 50 per cent rule and the referendum was deemed a failure. I think that is right. I am almost agnostic on the level of thresholds; I am just keen to see them.

If government use referendums too much and too often and the turnout begins to fall, they will have to address the issue of thresholds. As my noble friend said, if these referendums are used for major changes, frankly, politics will be brought into disrepute if major changes come about when only a small proportion of the electorate have turned out. I know all the arguments about, "Well, if they did not bother", and so forth. However, I do not think that is right.

I know all the objections concerning the threshold of 40 per cent. We had them in Scotland in 1979 and I have gone over them. I had an ingenious mathematical proposition which said that with a high turnout, a simple majority would do. If the turnout began to go down, a qualified majority was necessary. A Government Minister, who has since departed from the Government, turned down even consideration of that proposal. Perhaps I may urge caution on the noble Lord, Lord Bassam of Brighton. He should be careful that he does not follow the route of his predecessor by being too rude about the proposition from this side that we should perhaps consider thresholds in referendums.

Lord Bassam of Brighton

My Lords, if the noble Lord, Lord Mackay, has not already written a book, he has one in him perhaps entitled, "Great Constitutional Debates in which I have been involved". I shall not offer to be his publisher. I am not sure that it is a book which would sell widely. However, I am sure it would be interesting to read. Perhaps when I have a few idle moments I shall go back to those great debates on the Scotland Bill and read what the noble Lord had to say about constitutions, referendums, and so forth.

As noble Lords know, we have debated this matter before, certainly in Committee. At that point I set out our case against having a threshold. I made the point that on some occasions thresholds may be appropriate, and on others, they might not. Noble Lords reminded your Lordships' House that we have had two referendums in relatively recent political history in which such a threshold was, indeed, imposed. In one case that led to frustration of the will of those who had involved themselves in referendums. In the other the outcome was perhaps more satisfactory and proper.

However, the Government's position is clear and simple. It is that we should consider matters on a case-by-case basis. Both noble Lords who have spoken in this short debate have said that they do not approve of referendums. Given that they come from that starting point, it is to their great credit that they have decided that we should, at least in their view and from their perspective, seek to improve the way in which referendums work. I congratulate them on that.

However, the argument we put in Committee is the one which we believe we should sustain throughout these debates; that is, that we should leave things much as they are. For those reasons, I urge noble Lords to withdraw their amendments. Parliament can make a decision on matters relating to thresholds when it decides to make use of the referendum route to resolve an important constitutional issue. I believe that is the way in which we should proceed. It is the way we have proceeded in the past and I suspect that it is the way we shall proceed in future.

Lord Norton of Louth

My Lords, some people are morning people and some are night people. I suspect that the bad news for your Lordships is that I am both. However, I recognise that not everyone is in that position. I recognise the lateness of the hour, so I shall not respond at great length.

I suspect that it will come as no surprise to the Minister to hear that I am not persuaded by the response to the argument. I had already anticipated his points and put them forward in what I said. However, I acknowledge the lateness of the hour and that this is not perhaps the best time or environment in which to push the matter at this stage. However, like my noble friend Lord Campbell of Alloway, I may wish to return to it at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

12.45 a.m.

Clause 102 [Permitted participants]:

Lord Mackay of Ardbrecknish moved Amendment No.172: Page 75, line 3, leave out ("resident in the United Kingdom or").

The noble Lord said: My Lords, this amendment and Amendment No. 183 are quite simple. They are probes arising from the rather unsatisfactory position in which we left the Bill in Committee. Amendment No. 172 refers to Clause 102, and any resident in the United Kingdom who is a permitted partcipant in a referendum.

We do not disagree with what is said in the Bill, but we are saying that only people on the electoral register can donate to political parties. Yet in this clause the Government say that any person resident in the United Kingdom will be able to campaign in a referendum. Presumably, that includes foreign nationals. So we could have foreign nationals, not on the electoral register and therefore not eligible to give donations, still campaigning in a referendum on any of the number of issues that might be run in such a referendum. If they are not on the electoral register, they are presumably not permanently resident in the UK anyway because it is remark ably easy to get onto if they come from certain parts of the world. I believe that at the last count there were over 80 countries involved. If they come here they can get onto our register.

I wonder how "resident" is to be defined. Does it mean "ordinarily resident" which is a precise test well-known in law and a higher test, or does it just mean someone who has popped over and rented an hotel room? I do not believe it would be right if someone could just pop over to this country, rent an hotel room and them become a permitted participant in a referendum. I believe that the Government need some internal consistency in the Bill about these matters.

I fully accept that there are probably technical deficencies in Amendment No. 183 so that could cut the Minister's speech somewhat. What I am trying to do here is to address what I might call the Paris and Berlin situation. What is there to stop an individual resident in a foreign country spending millions of pounds in, say, UK newspaper advertisements in favour of one side in a referendum campaign? The Minister did not answer this point, but a person could not be caught by the rules. Would not that make a mockery of the spending controls? Can we have a provision in the Bill which will stop that or would that contravene the ECHR and the free movement of capital?

Frankly, if we cannot, and if I am right in saying that someone could do what I have suggested, then does it not make a mockery of the spending restrictions and referendums? Not only could they spend money on advertising and campaigning, but an individual or organisation could mail into the UK from abroad, as Sir James Goldsmith did in the 1997 campaign with his referendum video. What is there to stop that? Not only could a foreigner do that, but a UK citizen going abroad could exploit that loophole.

If there is nothing to stop them, then tomorrow the Minister will be in some difficulty arguing that the caps on referendum spending are anything other than just a total waste of time because anyone wishing to get round them will be able to do so in the way I have outlined. I hope that the noble Lord can persuade me that the propositions I am putting to him are wrong and that the Bill would prevent them. I beg to move.

Lord Bassam of Brighton

My Lords, the case for Amendment No. 172 is that it ought not to be possible for a person to be a permitted participant if he cannot be a donor. In the Government's view there need not and should not be an exact parallel.

First, it should be open to a foreigner resident in the UK, whether or not he is registered to vote, to participate in a referendum campaign. In human rights language, there is no sufficient justification for preventing him from doing so. Secondly, a British person resident here who, for whatever reason, dropped off the electoral register ought nevertheless to be able to participate in a referendum campaign. The person may have lost interest in party politics but nevertheless wants to make a mark on a special issue about which he or she feels passionately.

One might say that everyone eligible to register ought to do so, if only to keep up their right to participate in a referendum that might come along. Or it might be said that rolling registration would allow such a person t o get on to the register in time to be accepted as a permitted participant. But we feel that that is pushing logic too far.

Clause 102 does a good job. Amendment No. 172 complicates the picture without adding anything of value and therefore the amendment should not be accepted.

Lord Mackay of Ardbrecknish

My Lords, I believe the noble Lord is about to leave that amendment. Is he saying that, if we have a referendum on any issue, somebody from abroad could deliberately come over here to take part in the referendum and that would be sufficient to describe him or her as a "resident"? Is that what the Minister is saying?

Lord Bassam of Brighton

My Lords, I suspect that may well end up being the case. I can see a situation in which an American resident might live here with no registration to vote in place but nevertheless participate in a campaign. But the answer is that "residence" means "residence", not a visit. That may not entirely satisfy the noble Lord, Lord Mackay. He may feel that "residence" could be easily attained. Nevertheless, that issue is worth thinking about.

Lord Mackay of Ardbrecknish

My Lords, I am sorry to intervene again. The Minister was moderately helpful with the aid of people about whom we had better not speak. But what does that mean? If somebody comes from the United States at the beginning of a referendum and lives in a hotel room, will he or she be considered resident? If they took a flat for the duration, would they be considered resident?

If I can give the noble Lord some advice, he would be on firmer ground if he redefined it as, "the normal legal description of 'ordinarily resident"'. But he may need to take advice on that. Without trying terribly hard, I am afraid I have exposed quite a problem here.

Lord Bassam of Brighton

My Lords, the noble Lord is good at exposing problems. I congratulate him on that. I was going to go on to say with regard to Amendment No. 183 that the noble Lord is in danger of becoming an ace loophole spotter, a sort of green ink merchant of the loophole territory.

Our view on Amendment No. 183 is that we are not persuaded that the issue raised by the noble Lord is one to become excited about or that it is practical to do much about it. If the scenario has any reality—the example I have been given is that the Conservative Party might want to encourage participation in a referendum on the euro by British people who have lived abroad too long to keep up registration—we can live with that. In any event, it is not practicable for the electoral commission to crawl about the country looking for people who are spending less than £10,000. The purpose of limits on referendum expenditure is to prevent people from exerting undue influence simply by reason of their great wealth. The purpose of the cut-off point is to point up the people whose contribution to a campaign is really noticeable.

To summarise, on both amendments the noble Lord may have a point of sorts. But we do not believe that the abuse will be that great a problem in the way the noble Lord envisages.

I shall take away his point about reflecting on the meaning of the word "residence" and no doubt someone will come forward with a more satisfactory definition for the purposes of the Bill. I am grateful to the noble Lord for his interest in the matter but he would be wise to withdraw the amendment.

Lord Mackay of Ardbrecknish

My Lords, I shall withdraw the amendment but I am less than convinced by the Minister's argument. Such an important piece of legislation ought to be consistent. Frankly, as I have clearly demonstrated, the Bill is not consistent about who is allowed to be a permitted participant and who is allowed to be a permitted donor. They ought to be the same.

The Government ought to consider the point about residence but I am more concerned about the second amendment. I fully understand that a rich person who wants to influence a referendum and lives in this country will be caught by the rules and spending limits. However, my point is that the rich individual goes abroad and uses modern methods. I mentioned advertisements paid for from abroad; television advertisements originating abroad from, say, satellite television; and material posted from Holland, which has an efficient system, delivered to the United Kingdom. Is there any way such a person's spending will be controlled?

One of the problems the Government have about referendums is that they are worried about rich people spending fortunes on one side or the other. If I can spot the fact that the rich person needs merely to move abroad and he can then spend his fortune as he likes on sending propaganda back into the UK, anyone intent on doing so will already have spotted it. Therefore, the Government ought to do some quick thinking between now and Monday. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 173 not moved.]

Schedule 12 [Assistance available to designated organizations]:

[Amendment No. 174 not moved.]

Clause 111 [Restriction on payments in respect of referendum expenses]:

Lord Mackay of Ardbrecknish moved Amendments Nos. 175 and 176: Page 81, line 9, leave out ("and") and insert ("or"). Page 81, line 10, leave out ("£100") and insert ("£200").

On Question, amendments agreed to.

Lord Bach moved Amendments Nos. 177 and 178: Page 81, line 15, at end insert ("or receipt"). Page 81, line 16, leave out from ("payment") to end of line 18.

On Question, amendments agreed to.

Clause 112 [Restriction on making claims in respect of referendum expenses]:

Lord Bach moved Amendment No. 179: Page 81, line 24, leave out (", together with the relevant invoice,").

On Question, amendment agreed to.

Lord Davies of Oldham

My Lords, I beg to move that further consideration on Report be now adjourned.

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

House adjourned at two minutes before one o'clock.