§ 7.45 p.m.
§ Lord Campbell of Alloway
My Lords, I beg to move that the Bill be now read a second time. This Bill would restore to Parliament the freedom of the entitlement to resolve that a referendum be called on provisions of Bills which substantially affect the constitution. This entitlement was removed by Section 101(2)(a) of the Political Parties, Elections and Referendums Act which inhibits any referendum triggered by Parliament despite the Government.
The noble Lord, Lord Mackay of Ardbrecknish, my erstwhile noble friend, said from the Opposition Front Bench at the Report of that Bill that it would be wrong if the Government alone could trigger referendums. There was some discussion as to the trigger mechanisms for referendums, but no alternative to that proposed by the Bill was suggested—or has as yet been suggested. The broad sense of the House on Report and Third Reading was that Parliament should not be inhibited from calling a referendum.
The Bill reflects Conservative Back-Bench and Cross-Bench amendments moved on Report and Third Reading of the Political Parties, Elections and Referendums Bill. The amendments were supported by my noble friend Lord Dean of Harptree, the noble 764 Lord, Lord Chalfont, and on Third Reading by my noble friend Lord Cranborne, who sent a note to say that he much regretted that for an urgent reason he could not attend to speak today. In winding-up the noble Lord, Lord Bach, on Third Reading said that these amendments raised matters of considerable importance to which this House would no doubt return.
The Bill is an enabling measure which acknowledges the supremacy of another place and can only function with the agreement of both Houses if so advised. The Bill involves no amendment to the Parliament Acts or to the Rules of Procedure of either House. It envisages a new dimension of comity as between the two Houses on safeguard of the constitution without derogation from the delaying powers under the Parliament Acts.
It is a short Bill. Clause 1 does not oblige your Lordships' House to accept the report of the Constitution Committee which has the remit. That is a matter to be confirmed on the date of the Motion of my noble friend Lord Dean of Harptree, which at the moment is in No Day Named. But any other Select Committee on which the remit would be conferred would be acceptable. The remit confers no power on the Constitution Committee or another Select Committee to recommend that a referendum should be called. That is a matter for your Lordships' House; as indeed is also the conduct of the referendum.
Clause 2 does not oblige another place to entertain a Resolution from your Lordships' House that a referendum should be called. But another place may approve, reject or amend it. Clause 3 acknowledges the supremacy of another place and confers legislative effect affording this new dimension of comity to seek agreement as between the two Houses if so advised. Clause 4 prohibits a referendum unless both. Houses agree. Clause 5 delays Royal Assent but leaves it open to the Government whether to proceed with a Bill the provisions of which have not been approved on a referendum. The other provisions are formal.
The Bill is rooted in and grounded upon the Cranborne/Addison doctrine, teaching that difficulties should be sought to be resolved by consensual accommodation, by ad hoc arrangements on a case-by-case basis, to enable the Government to have their business originally, but now, under the Bill, to serve as a measure of safeguard for the constitution. In your Lordships' House there is no obligation to accept the report of the Select Committee or to call a referendum. No obligation whatever is imposed on another place to seek or to reach agreement, without which no referendum may be called. No statutory, codified obligation is imposed by the Bill on either House. The height of the hurdle raised for the Government to surmount is wholly dependent upon the will of Parliament, as indeed it should be. The essential element of informal flexibility is retained.
In general, referendums are not to be favoured. They derogate from the authority of Parliament, as understood by Burke. They have been used as a tool of government to implement government policy with absolution from any responsibility for its 765 implementation. It is disputed whether as yet referendums have, de facto, become assimilated in our unwritten constitution, a matter on which your Lordships may well entertain divergent views. But the purpose of this Bill is not to derogate from the authority of Parliament. It is to enhance it. It is not to assist the Government to implement government policy, but to challenge aspects of government policy, reflected in a government Bill which substantially affects the constitution, albeit largely unwritten. As yet, assuredly, my Lords, there has been no de facto precedent for the type of referendum proposed by the Bill to seek to avoid erosion of the constitution at the behest of government.
In the light of scrutiny, ought not Parliament, if so advised, to have the freedom to resolve whether the people should be consulted on a referendum before Royal Assent to a Bill were to be sought? As my noble friend Lord Cranborne said at the Third Reading of the Political Parties Elections and Referendums Bill, we have to consider how we can close what is presently an unclosed circle between Parliament and the electorate.
In gratitude to your Lordships, whose contributions to constructive debate shall command the utmost respect, I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Campbell of Alloway.)
§ 7.55 p.m.
§ Lord Dahrendorf
My Lords, it falls to me to continue the Second Reading debate on the Parliamentary Referendum Bill introduced by the noble Lord, Lord Campbell of Alloway. I start by expressing my pleasure in having this opportunity and acknowledging the experience and thought behind the Bill. My only regret—I have nothing to do with drawing up the speakers' list—is that once again I seem to be unable to react to the noble Lord, Lord Norton of Louth, whose contributions to constitutional debates I always enjoy and often agree with. However, I always seem to be forced to speak before him so that I cannot benefit from his contribution before it is my turn. But back to the Bill at issue.
Its intention is to make changes substantially affecting the constitution more difficult. I wholeheartedly agree that there should be the most thorough scrutiny of all those changes. The question is: how? I begin by quoting a speech of the noble Lord, Lord Norton, in a debate on the Political Parties, Elections and Referendums Bill on 18th October 2000. He began by saying:I oppose the amendment".I could say today that I oppose the Bill. He went on to say:I have always had a principled objection to referendums. The fact that they may be held has not shifted my principles. The fewer that we have, the better. In an ideal world we would not have them".—[Official Report, 18/10/2000; col. 1154.]766 That is my view and I was pleased to hear the noble Lord, Lord Campbell of Alloway, say in introducing the Bill that in general referendums are not to be favoured.
When your Lordships discussed the proposals of the noble Lord, Lord Campbell, as an amendment to the Political Parties, Elections and Referendums Bill on 27th November 2000, several seemed to agree with the noble Lord, Lord Norton of Louth. Therefore, I do not need to reopen or repeat the discussion. But when re-reading Hansard for that date I was struck by a certain mood of despondency—almost defeatism—which I do not share. The noble Viscount, Lord Cranborne, said that,like it or lump it. referendums are with us".—[Official Report, 27/ 11/2000; col. 1148.]It does not follow that one has to have them on a general category of occasions. The noble Lord, Lord Mackay of Ardbrecknish, if one is allowed to quote him in his earlier incarnation, spoke of his "suspicion" of referendums, which he had explained to your Lordships' House on earlier occasions. The noble Lord, Lord Peston, said:I … do not care much for referendums. However. I know that I am hopelessly out of date and it would be absurd for me to suggest that it is not a good path to do down. I believe in Parliament as the place to take decisions and convince the country. But that is an old man speaking, and I shall go no further on the point".—[Official Report, 27/11/2000; cols. 1149–50.]Well, here is another old man speaking, who would, however, say, "Why not go further?"
It is true that the possibility of holding referendums is now open. It is also entirely right that, while discussing and debating the Political Parties, Elections and Referendums Bill, we should have considered the question of who could trigger them, and how. But just as we do not need to reject every statutory instrument simply because we have the right to do so, I do not believe that we have to use the tool of the referendum simply because it is available to us.
The reason for that is simple: I certainly believe that decisions made through deliberation in representative institutions—that is, in Parliament—are preferable to snapshot decisions which further contribute to what I am sometimes tempted to call a climate of throw-away politics in which political projects are adopted and discarded, just as many other things are adopted and discarded in the world in which we live.
I would apply this consideration even to constitutional matters—perhaps particularly so. Perhaps I may give two additional reasons why I believe that referendums are the wrong tool at this point. First, such matters arise surprisingly frequently. Very few Bills that we debate in this Chamber do not have a constitutional element: the Regulatory Reform Bill is full of constitutionally relevant issues, some of them extremely important; the Political Parties, Elections and Referendums Act itself, along with the Government Resources and Accounts Act. One could easily draw up a long list to demonstrate how frequently such issues arise.
767 The second reason why I believe that referendums are an undesirable instrument in this connection is that quite often these constitutional issues are really rather technical, or at least they appear to be so. I shall follow my noble friend Lord Russell who in the debate last November stated that:For example, I could argue that the abolition of the Joint Committee on Statutory Instruments was a matter of first-class constitutional importance, for it would allow the executive to make law without the consent of Parliament".However, he went on to add that:I dread the thought of explaining the case for a referendum on that to the voters".—[Official Report, 27/11/00; col. 1160.]No doubt one could form packages of constitutionally relevant or even important constitutional issues. No doubt one could from time to time extract from them certain principles. However, either way, it seems to me that the instrument of the referendum—the tool of the referendum—is a curiously unattractive and inappropriate tool with which to deal with them.
I said that I agree with the intention of the Bill. I also think that constitutional changes should be difficult. Moreover, I hope very much that we shall soon have a constitution committee which will have a role to play in this process. In my view, the constitution committee has a purpose rather similar to that of the Delegated Powers and Deregulation Committee. Indeed, when members of the committee met colleagues from Australia, we were almost a little envious of the fact that they can examine and scrutinise Bills not only for delegated powers but also for constitutional propriety.
I certainly look forward to seeing reports produced by the constitution committee for your Lordships' House about the constitutional implications of Bills. Furthermore, I look forward to the debates which will be held in this House as regards its most important function—as a safeguard for the principles of the constitutional practice by which we live. If there were to be a written constitution—which incidentally I am not advocating, although I am sure that others on these Benches would do so—the whole question of the referendum would be posed anew. There would be a serious issue to discuss as regards whether such a constitution would need the support of the people in a way in which it cannot be given by representative institutions.
For the present, however, and for the foreseeable future, I believe that we already have the necessary instruments to deal with constitutionally relevant changes, especially once the constitution committee has been set up. For that reason, I hope—with much regret, because I appreciate the intentions of noble Lord, Lord Campbell of Alloway—that this Bill will not be enacted.
§ 8.5 p.m.
§ Lord Simon of Glaisdale
My Lords, not for the first time are we indebted to the noble Lord, Lord Campbell of Alloway. On this occasion he has caused noble Lords to face the problems which have come about through the advent of direct democracy to supplement our traditional system of indirect or representative democracy.
768 Until the 1970s, I think there was almost unanimous opinion that the referendum had and should have no part in our constitution. But as the noble Baroness, Lady Gould of Potternewton, said on 12th May 1999 in a debate on referendums:It is undeniable that referendums are now accepted as part of our political process".—[Official Report, 12/5/99; col. 1209.]Indeed, there are a number of what the noble Lord, Lord Dahrendorf, may have described as "threatened" referendums on the agenda.
This is a matter which we ought to face and take seriously in order to work out the detail as far as possible, although I respectfully agree with the noble Lord, Lord Dahrendorf, that we badly need a constitutional committee. I would hope that one of its first tasks would be to work out generally whether referendums are suitable in our constitution and our parliamentary proceedings. We could then go on to deal with the nuts and bolts of procedure.
I am sorry that the noble Viscount, Lord Cranborne, has had to fall out, because I was counting with some confidence on his advocating post-legislative referendums. As he is not here to do that, I feel exonerated from mentioning the matter further myself. However, his departure has brought me to undertake what is a privileged but humbling task; namely, that of following immediately the noble Lord, Lord Dahrendorf. He brings an incomparable combination of experience and scholarship to these problems.
We must view what is proposed in this Bill—and, indeed, the issue of the referendum in our constitution generally—against recent developments. Far and away the most important development, to my mind, is the increasing ascendancy of the executive over the House of Commons, which has a profound impact on representative parliamentary government.
Secondly, in so far as the House of Commons can no longer adequately hold the executive to account and scrutinise its legislative proposals, the task falls to your Lordships' House if it is to be performed at all. On the other hand, the use of the Parliament Act almost as a routine in cases of differences between the Houses, makes Parliament unicameral, a one-Chamber parliament in which the executive is ascendant.
Thirdly, the high level of absentation and alienation on the part of the electorate is a weakening at the other end of our system of representative government.
Lastly, was it not rather extraordinary that the devolution Acts were submitted for referendum to Scotland and to Wales but not to the infinitely more numerous population of England, which was, of course, also affected by devolution? In connection with that, it was surely deeply disturbing that the Neill committee should have found the procedures in the Wales devolution to have been so unfair. That is a bitter word to use in relation to any part of our constitution.
In a recent debate, the noble Lord, Lord Dahrendorf, quoted Madison:The people are the only legitimate fountain of power".769 That is very largely—although not wholly—true of the American constitution, but it is not wholly true of ours. However, the people are a legitimate fountain of power here, and if the representative stream becomes polluted, cloudy or turgid, surely it is sensible to have recourse to the fountain itself. It seems to me that the noble Lord, Lord Campbell, is doing us a service in bringing this matter before us.
The urgent question is in what circumstances constitutionally do we need or desire a referendum? I totally agree with the noble Lord that that is a matter on which we should take advice from the Constitution Committee. However, I would also add this. Reverting to what I said about the ascendancy of the executive and the way the Wales devolution was handled, it surely ought not to lie with the executive exclusively—or, indeed, I would say, at all—to decide on the timing and impact of a referendum.
When your Lordships in the previous Parliament considered the Swiss constitution, attention was drawn to the initiative: the people themselves can propose a referendum. If my memory serves, that is also a part of the constitution of California. We should not leave out of account the initiative and the recourse.
The second urgent matter for decision is how the referendum should be conducted; how it should be financed. That has been, to a certain extent, under consideration in relation to the Bill over the past year. The noble Lord, Lord Campbell, guardedly said that your Lordships' House may make such provision as to the conduct of such referendum as may be deemed to be appropriate. The noble Lord was a famous soldier and a famous lawyer; that is undoubtedly a very guarded proposal, exposing no vulnerable flanks at all.
The final matter of great importance to be decided in relation to a referendum is who frames the question. It would be very unsafe to leave it to the executive. Scholars have turned up two clear examples in California—one relating to a social service and the other relating to nuclear power—in which the question was posed in a way that was, one is bound to say, deliberately misleading—or, at any rate, effectively misleading. So one of the matters to be determined under the aegis of the noble Lord's safe formula is who frames the question.
I have dealt with this matter generally because this is Second Reading. I do not imagine that the House will divide. I do not imagine that the noble and learned Lord, Lord Falconer, will greet the Bill with great enthusiasm—it would surprise me if that was the view of the Government—but I venture to support the Bill's Second Reading.
§ 8.18 p.m.
§ Lord Norton of Louth
My Lords, it is an honour to follow the noble and learned Lord, Lord Simon of Glaisdale. I agree in part with his analysis, but I disagree with his conclusion. It is also an honour to follow the noble Lord, Lord Dahrendorf. As he mentioned, this is not the first time that I have followed him and, I might add, it is not for the first 770 time that I agree with everything that he has said. My only concern was when he started to quote what I said in an earlier debate. I was a little worried that, if he went on, some of the points I wish to make this evening might seem remarkably familiar to your Lordships.
I also congratulate my noble friend Lord Campbell of Alloway on bringing this Bill forward. He has been a doughty campaigner in pressing for referendums—or, rather, in pressing for a triggering mechanism that may make possible a referendum in certain circumstances. I also acknowledge his generosity of spirit in reminding me that the Second Reading of the Bill was scheduled for today and for encouraging me to put my name down to speak against it. I must confess that I did not need much encouragement.
Perhaps I may outline my objections to referendums and then identify particular problems with the Bill before us. As the noble Lord, Lord Dahrendorf, mentioned, I have said before that I have a principled objection to referendums. Parliament is the deliberative assembly of the nation. Parliament should decide issues, be they large or small. To say that matters should be decided by referendum is to say either that Parliament does not have the intellectual competence to decide the issue or that it does not have the political authority to do so, or both. I do not accept either argument. I believe that Parliament is the competent, authoritative body to decide. This point was made forcefully by my noble friend Lady Thatcher in her first parliamentary speech as Leader of the Opposition in 1975. Parliament, she said, comprises a body of elected representatives, chosen by the people to discuss and deliberate on government proposals. Members of Parliament, she argued, could consider the interests of minorities and see how separate measures fitted into the whole. Referendums would undermine Parliament's position.
Furthermore, there are two practical arguments that bolster the case for Parliament deciding issues. The first was well put by the late John Mackintosh, speaking in the same debate as my noble friend Lady Thatcher in 1975. A referendum, he said, perpetuates a confusion between government by debate, thought, reflection and decision in the House of Commons with a head count of the people. Reasoned debate in an informed House, he argued, would give way to a national vote, based on a national campaign which would not enjoy the same advantages. This is an important point. Parliamentary debate offers essentially an even playing field, with clear rules governing the operation of debate. We have tried to create clear— and fair—rules for referendums through the medium of the Political Parties, Elections and Referendums Act but we have not been altogether successful. We have not solved the funding problem—in terms of ensuring an even playing field—and we have not fully solved the problem of bias in the wording of the question.
The second and related advantage to parliamentary deliberation is that the issue can not only be debated, but nuances can be explored and amendments offered. Reasons for rejecting a particular Motion or amendment can be advanced and new amendments 771 can be brought forward. This is all part of a reasoned, deliberative process. Referendums are different. They are essentially blunt tools and after the event we may have little idea why people voted as they did. Is a particular proposition rejected because the proposal went too far or because it did not go far enough? We do not know. If there is ambiguity in the question, we may not even be sure that the outcome is an accurate reflection of voters' views.
Furthermore, referendums do not offer the advantages that many claim. They are not necessarily ways of determining the views of voters on a particular issue. Referendums cannot bring agreement where none exists. A referendum is not necessarily any more able to resolve matters of conflict than is a vote in Parliament. Where there is not agreement, the losing side is often not willing to accept the result. Furthermore, questions can be ambiguous. The noble and learned Lord, Lord Simon of Glaisdale, touched on this point. I have called attention before to the problem of "mistaken votes"—that is, electors casting a vote contrary to what they thought they were voting for. Research in the United States has suggested that in some state ballots, particularly where voters did not hold strong preferences, the figure for those casting "mistaken" votes was between 10 and 20 per cent.
Nor are referendums quite such popular devices as supporters may believe. Although people, when asked, will favour the use of referendums, they do not follow through by actually taking part in them when they are held. Turn-out in referendums tends to be lower than in elections of candidates to public office. That applies elsewhere. It also applies within the United Kingdom. Turn-out in the last general election was far higher than in the referendums in Scotland, Wales and London. In Wales, half the voters stayed at home. In London, the vast majority of voters stayed at home.
Nor are referendums as much in use elsewhere as may be thought. We are not out of step with other countries, because there is nothing to be in step with. Some countries hold referendums on a regular basis, some hold them on an irregular basis, and some do not hold them at all. Switzerland is the world leader for holding referendums. According to the book, Referendums around the World, edited by David Butler and Austin Ranney, there have been over 800 national referendums held in the history of the world; about half of those have taken place in Switzerland. Switzerland is the exception. There is no common practice elsewhere and no particular trend. To quote Butler and Ranney, at page 6:To carry conviction, referendums have to be orderly affairs, conducted under accepted rules. But no two countries have identical electoral systems, and none have identical regulations for the conduct of referendums. The laws governing the organisation and finance of Yes and No campaigns and the format of the ballot paper vary, as does the significance attached to the result".There is thus nothing to build on in terms of practice elsewhere; nor should we build on what has happened in the United Kingdom. The fact that we have held a number of referendums, under different conditions, is no argument for holding more. My noble friend's Bill is designed as a trigger for holding referendums. That 772 trigger might not be activated, but it could be, and the assumption is that it would be. I do not want to do anything that would facilitate the holding of referendums.
I end by drawing attention to particular problems with my noble friend's Bill. Ironically, some of the problems are such as to undermine the likelihood of the Bill having the effect that my noble friend intends. Given that, I should perhaps not mention them too loudly. However, as I suspect the noble and learned Lord, Lord Falconer, is likely to mention one of them, I thought I would get in first.
If my noble friend intends this Bill to act as a restraint on government, he will need to replace subsection (2) of Clause 7. Otherwise. even if this Bill is passed, I doubt whether the measure will ever be brought into force. Also—I suspect that this is the point that the Minister will make—it still leaves tremendous scope for imprecision and argument. My noble friend has sought to address some of' the problems identified during our consideration of the political parties Bill, but I am not sure that he has solved them. My noble friend's Bill does not foreclose the possibility of other Bills being brought forward to provide for referendums on other issues; nor does it prevent a measure being brought forward to provide for a referendum on a measure that the constitution committee has decided does not substantially affect the constitution. All this Bill does is, if anything, give the constitution committee a fast-track procedure. As such, it may be described as a soft, rather than a hard, Bill in providing for referendums, but—in that it does not limit their use or address the problems I have identified—I regard it as just as objectionable as a hard Bill.
As I have stressed, my principal objection to referendums is essentially one of principle. I suspect that on the sort of issues on which referendums may be held, the result may well be in the direction I would wish it to be. But that is beside the point. I am opposed to referendums as such.
Finally, picking up on a point made by the noble and learned Lord, Lord Simon of Glaisdale, if we believe that Parliament is not doing its job in calling government to account, that is a case for strengthening Parliament. It is not a case for inviting it to abdicate its responsibilities.
§ 8.28 p.m.
§ Lord Chalfont
My Lords, I shall speak briefly, because I believe that the legal implications of the Bill are best dealt with by constitutional lawyers and not by laymen. My reason for taking part in the debate is that I should be inclined to support any initiative that seemed designed to protect the constitution from meddlesome change. It was Horace Walpole who said:Everybody talks of the constitution but all sides forget that the constitution is extremely well, and would do very well, if they would but let it alone".Whatever may be the views of noble Lords on the virtues of the referendum as a political instrument—and the noble Lord, Lord Norton of Louth, made an 773 impassioned intervention on the subject—I shall make no comment save to say that the referendum is with us as a political instrument. The other point is that it is only a part of the spirit and intention behind the noble Lord's Bill. Behind the instrument of the referendum there is a principle that I believe to be important. It is one to which we should give serious thought, and we should be grateful to the noble Lord for bringing it to our notice.
I take it to be a matter of common ground that when this Bill refers to legislation that substantially affects the constitution, we are speaking of the constitution as it relates to the Crown, the composition and powers of Parliament and, most importantly, what has come to be known as,the liberty of the subject"—an important part of any constitution.
A constitution—and I believe that ours does this—defines the ways in which the Government's decisions are made and enforced; and the limitations upon such enforcement. We are rightly said to have in this country a constitutional executive whose activities can be checked, challenged and supervised by peaceful and permanent machinery. In such a society, any Act, including a Bill of the kind adumbrated by the noble Lord, which contravenes those checks upon the executive can be said to be unconstitutional.
I have a feeling that in the interests of modernisation and other buzz words of modern thinking, some of those checks on the executive are falling into disuse and are even being deliberately ignored. I fully accept that there is no doubt that constitutional law can be changed, amended or abolished like any private law. There is no field in which Parliament is forbidden to legislate. I should like simply to mention here the comment made by the noble Lord, Lord Norton of Louth, about the supremacy of Parliament and its authority in such matters.
One of the points that I should like to raise is the fact the Parliament has lost a great deal of its authority and continues to do so. It is often subject to the pressures of the executive to an extent that I believe to be undesirable. In my view, as a result of that, we embarked upon the partial reform of your Lordships' House. It was a significant constitutional change, the full implications of which have yet to be fully realised. I often wonder what would have been the result if that Bill had been the subject of a referendum.
Of course, constitutional lawyers must always bear in mind the changing habits and culture of the society in which they live. The constitution is much more than its laws, and significant alterations to the constitution can be justified by custom and habit alone. So, in speaking of the constitution, we must always take account of current political practice and the day-to-day working of political institutions; in other words—this will come as no surprise to your Lordships—the constitution must be flexible. It cannot be engraved in tablets of stone and never changed.
774 Yet, at the same time—and this is why I have risen to my feet to make a very brief intervention this evening—we must guard against the hubris of any executive power that seeks to use democratically elected parliamentary majorities to make fundamental changes to our constitution. I believe that there is great danger of that happening. It is for that reason that I am attracted to the provisions of this Bill which, as I understand it—I trust rightly—seek to place the last word on changes to the constitution where it belongs: in the hands of the people, whose life and liberty depend upon the very existence of a strong and inviolable constitution, whether written or not. As the noble and learned Lord, Lord Simon of Glaisdale, rightly said, this emphasis upon the role of the people in the preservation of the constitution and the relevance of the constitution is perhaps more powerfully evident in the United States constitution than it is in our own.
Not surprisingly, the noble Lord, Lord Campbell of Alloway, mentioned Edmund Burke. It has been my experience that there is scarcely no aspect of political philosophy upon which Edmund Burke did not have something valuable and profound to say. I shall close my brief remarks with his comment on the dangers of an overweening and over-powerful executive. Corrupt influence, he said, is the perennial spring of all disorder, it takes away,vigour from our arms, wisdom from our councils, and every shadow of authority and credit from the most venerable parts of our constitution".It is with those words in mind that I support the Bill introduced by the noble Lord, Lord Campbell of Alloway.
§ 8.35 p.m.
§ Lord Dean of Harptree
My Lords, I rise to support the Bill introduced by my noble friend Lord Campbell of Alloway with his usual ingenuity in drafting. The arguments that I wish to use in support of him very much follow the remarks just made by the noble Lord, Lord Chalfont.
In this Parliament we have seen many important Acts that have changed our constitution. We have Acts changing the government of Scotland, Wales, Northern Ireland and London. We have Acts changing our voting procedures and we have the Human Rights Act. I do not wish to argue the merits of these Acts. I hope that they will be beneficial for the United Kingdom. But there is no doubt that they add up to a revolution in our constitution. Many of them will be irreversible, unlike many other Acts that can be repealed by an incoming government, if Parliament agrees.
We are now faced with exactly the same parliamentary procedure for Bills concerning major constitutional matters as for minor technical legislation. There was a very strong convention in another place until recently that Bills concerning the constitution were always taken without guillotine Motions and all aspects were taken on the Floor of the House, rather than in Standing Committee. These were not Standing Orders; they were conventions.
775 They have now been overridden without the agreement of the Official Opposition. So we are now faced with exactly the same procedure for minor Bills as for Bills of major constitutional importance. That seems to me to be a disturbing development.
If one looks at the constitutions of many countries with written constitutions—for example, most Commonwealth countries, the United States, and others—one finds that there is almost invariably a higher hurdle for Bills changing the constitution: possibly a two-thirds majority is required or a referendum. But we have none of those safeguards at all in our Parliament. It seems to me that the lessons we have learned, especially in this Parliament, show that, as far as concerns constitutional Bills, our parliamentary procedures are weak and lack adequate safeguards to ensure effective scrutiny. They can allow governments, no matter what their political colour, to rush through major changes without adequate scrutiny in either House of Parliament.
What can be done about the situation? I am delighted that your Lordships have agreed to set up a Constitutional Committee. I have tabled an Unstarred Question, which I hope will fall due for debate very soon, to consider the role of that committee. I hope that all noble Lords who have spoken this evening will speak also in that debate.
I turn now to my noble friend's Bill. I am not terribly keen on referendums either. It seems to me that the concept fits ill with our idea of representative government and the sovereignty of Parliament. But constitutions evolve and circumstances change. The reality is that we have been using referendums recently for a whole series of reasons. Of course there are problems involved. As the noble and learned Lord, Lord Simon of Glaisdale observed: who frames the question?
We now have some ground rules on the statute book. I do not believe that they are entirely satisfactory, but they are at least a move towards trying to ensure that, if we do have referendums, they are framed correctly. Life moves on in that regard. Although I have some reservations about my noble friend's Bill, it seems to me that we have now reached the stage where we shall use referendums. If we are to use them, I can think of no better subject to put to the judgment of the people than Bills which change the constitution of our country.
§ 8.40 p.m.
§ Lord McNally
My Lords, I agree with the noble Lord, Lord Dean, that we have had a constitutional revolution over the past four years. I think it is fair to point out that that constitutional revolution was promised by both the Labour Party and the Liberal Democrats in the committee chaired jointly by Robin Cook and Robert Maclennan before the election—the Cook/Maclennan committee, which spelled out what we would set our hand to if, either separately or collectively, we had a majority in the Commons after the 1997 election. In that way the constitutional 776 revolution of which the noble Lord talked was put fairly and squarely to the British people in a proper way before the 1997 election.
That does not mean that the outcome and the consequences of that revolution have not brought new challenges. The noble Lord, Lord Chalfont, is right about that. The concern about the power of the executive, particularly in terms of civil rights and the rights of the individual within our constitution, is a proper one. My research is totally unscientific. I believe that if there had been a referendum on reform of the House of Lords, people would have voted to keep this place and abolish the other place. That does not give me too much pleasure because I am worried—as I think many people are—about the low esteem in which another place is at present held. I shall return to that in a moment.
There is always a certain excitement for a Liberal Democrat Front Bench speaker, particularly when he knows that one of our more independent minds such as the noble Lord, Lord Phillips of Sudbury, or the noble Earl, Lord Russell, or the noble Lord, Lord Dahrendorf, will speak, as to whether their speeches and my speech will be close in terms of content. I am delighted to say that on this occasion I agree very much with what the noble Lord, Lord Dahrendorf, and, indeed, the noble Lord, Lord Norton of Louth, said.
Like many who are steeped in the parliamentary tradition, I am extremely suspicious of the use of referenda. Indeed, the noble and learned Lord, Lord Simon of Glaisdale, said that it was not until the early 1970s that we started to toy with referenda. I was present at an historic meeting. Noble Lords may know that in my chequered career I was an official of the Labour Party. I was present at the meeting of the national executive held in the early 1970s when it discussed how to handle the complete split in the party over membership of the Common Market—Mr Heath having successfully negotiated entry—and how the party would hold itself together in the face of that split. The ever ingenious Mr Anthony Wedgwood Benn put forward the idea of holding a referendum. It is interesting to note that at that meeting he could not find a seconder for the idea, so alien was it at that stage to the national executive. But, of course, four years later, the then Labour government held a referendum, not for any great constitutional reason but on account of the matter that had given the national executive such difficulty; namely, the complete split in the party over Europe and how to keep the party together.
I sometimes think that in future PhDs will be written on the career of Mr Wedgwood Benn and on his impact on the constitution and whether it was, on balance, good or bad. In the case I mentioned I believe that his impact on the constitution was undoubtedly bad. I believe that the use of referenda as it has emerged over the following 30 years has been one of the weakening devices used on Parliament. As has already been pointed out, it is a device of dubious authority. The turn-outs in the devolution referenda were very low. Let us be frank: referenda are the last refuge of politicians who want to cop out of making a decision. Over the past 200 years we seem to have— 777 this is why I referred to the Cook/Maclennan committee—managed to extend our franchise, give votes to women, reform the Lords and, indeed, adopt the European Act on human rights, all without the need to hold referenda. The fewer referenda we have, the better.
As has been pointed out, some countries embrace referenda. California has been mentioned, although the noble and learned Lord, Lord Simon, pointed out that there have been problems there. As regards party policy—I discovered, much to my relief, that we have a party policy on such matters—there is great emphasis on the responsibility of the Constitution Committee of your Lordships' House and on giving a fully reformed House of Lords particular responsibility for safeguarding the constitution. But until that reformed House of Lords is in place, we would be reluctant to see any automatic trigger mechanism for referenda. Indeed, as I have said, what we would rather see is a recognition that the executive has become over powerful; that the ascendancy of the executive, to which the noble and learned Lord, Lord Simon, referred, is a danger, but that our task and our priority should be to urge reform, particularly in another place, to strengthen the scrutiny of Parliament.
We need to emphasise particularly the fact that referenda would enhance single issue politics at the expense of party politics. As I say, it would weaken the authority of Parliament, making whatever decisions Parliament took always subject to a second appeal to the wider electorate. I believe it was the noble Lord, Lord Norton, who pointed out that often the results of referenda are not accepted anyway. The noble Lord, Lord Stoddart of Swindon, is not present tonight, but he constantly denies the outcome of the 1975 referendum which revealed a two to one majority in favour of entering the Common Market. He says that the wrong question was asked, or the wrong information was given, or the then government used an unfair advantage.
Like my noble friend Lord Dahrendorf, I am afraid that I cannot wish the Bill well. I wish the thinking behind the Bill well. Certainly we would not break with convention by trying to divide the House. We believe that the issues that have been raised are important and need to be dealt with as we consider the responsibilities of a reformed House of Lords. But until that happens, we hope that referenda remain a last refuge of scoundrels and, therefore, remain as a curious constitutional device that flourished briefly at the turn of the century but then was left to gather dust while Parliament took on its real responsibilities in a representative democracy.
§ 8.49 p.m.
§ Lord Henley
My Lords, I offer my thanks to my noble friend. I believe that he has done a service to the House in bringing forward the Bill.
I begin by saying a little about the context in which the Bill is published. I believe that the debate fits into a series. It follows the debates on the Parliament Acts 778 initiated by the noble and learned Lord, Lord Donaldson of Lymington, and on the Salisbury doctrine, initiated only last week by the noble and learned Lord, Lord Simon of Glaisdale.
The common threat is that Members of your Lordships' House, across all parties, are saying that since 1997 the balance of power in this country has been shaken. This House, rightly or wrongly, has been altered, making it, in the words of the noble Baroness the Leader of the House, "more legitimate" and giving it more "authority". The other place has seen its procedures "modernised" so as to increase still further the grip of the executive on that part of Parliament.
This is not a process that is unique to this Government but, sadly, they have carried it to previously undreamed of levels. It is they who have set aside the historic balance of the constitution. I agree with the noble Lord, Lord Barnett. In our debate on the Salisbury convention last Wednesday, he said:It is vital that real powers are given to a second Chamber, if only to provide a check on what the noble and learned Lord, Lord Hailsham. described as the elected dictatorship. We have that now in another place with a government majority of more than 170".— [Official Report, 24/1/01; col 286.]The noble Lord was echoed by the noble Lord, Lord Desai, in a typically challenging speech. He said:If the government are to be made to listen to us, we should have fewer, rather than more, restrictions on how … we can exercise our powers".—[Official Report, 24/1/01; col. 281]This sense that the executive leviathan in this country needs to be shackled is growing, and it is common to thoughtful people of all parties. Our party has pledged itself to the cause of a strong Parliament. We believe that Parliament is the only place where not only over-mighty governments can be held in check but also over-mighty bodies throughout our society and even over-mighty international forces too.
We will support no reduction of the powers of this place. We will support no changes in procedures that reduce our ability to hold the executive of whatever party to account. That is why we wish to develop the role of this House. That is why my noble friend Lord Strathclyde led the call for a new constitutional committee, which has now been set up. That is why in the new House we have abandoned the convention respected by my party in the old House not to vote against orders. That is why we have said that the Salisbury convention needs to be reviewed in changing circumstances. That is why we are sympathetic to this House having more opportunity to consider financial matters. That is why the Bill that my noble friend puts before us today raises questions of fundamental importance.
In the debate on the Parliament Acts initiated by the noble and learned Lord, Lord Donaldson of Lymington, the noble Lord, Lord Shore of Stepney, said—and I agree—that,the essence is to have a safeguard against the misuse or abuse of power in the House of Common".—[Official Report, 19/1/01; col. 1318.]The noble Lord implied, as my noble friend's Bill proposes, that referendums might be a way of providing a further lock on major legislation that would alter the constitution of this country.
779 Like many other noble Lords who have spoken, although in varying degrees, I am not instinctively in favour of referendums. But we have to recognise that they are now an established part of our way of government. The Government have used them more frequently than any of their predecessors, although not in a way I would recommend for any government. In Scotland, Wales and London they have used pre-legislative referendums in which general principles already enunciated in the party's manifesto are put to the people. It was the Government who set the questions. They resisted clarification or separation of the questions. They allowed, and have entrenched in the recent Political Parties, Elections and Referendums Act, rigged referendum rules which allow one side to spend more than the other in a referendum. I do not believe that that is a proper way to proceed.
Pre-legislative referendums are no way to take the will of the people. The details of the legislation are not known and can be changed. The kind of debate that parliamentary scrutiny provokes has not taken place. They are nothing more than a tawdry way to seek to coerce Parliament and to cow it into not questioning the Bill that is later put before it.
What my noble friend proposes is something different. It is akin to the ideas put forward by my noble friend Lord Cranborne, most recently in the debate last Wednesday, introduced by the noble and learned Lord, Lord Simon, and by several distinguished noble Lords during the course of the Political Parties, Elections and Referendums Bill. I think of the noble Lord, Lord Owen, and the noble Lord, Lord Healey. It is proposed that once Parliament has considered a piece of legislation in detail there should be a mechanism within Parliament to press the executive to undertake a referendum to take the mind of the people before pushing a Bill to Royal Assent.
My noble friend also gives a special place to the new constitutional committee which we all hope and expect will play a valuable part in national affairs. The proposal does not seek, rightly, to give this House unilateral powers. That would be wrong, except in the unique case of an attempt to extend the life of Parliament. However, it would give this House immense moral authority—something that one would hope another place would find difficult to ignore.
A post-legislative referendum on a major constitutional question could—I stress "could"—have many virtues. It would ensure that the British people were aware of the implications of major changes planned in their name. It could be a way of addressing a deadlock between the two Houses on major constitutional questions. It could be a way of reinforcing the checks that this House can place on the elective dictatorship. It could also be a way of putting a break on major alterations in our constitution in the event of one House having been whipped to pass a Bill and this place threatened with the coercion of the Parliament Acts.
780 I think that there is an argument that major constitutional Bills should have to go through particularly onerous scrutiny. I am not yet certain of the case for post-legislative referendums before Royal Assent, as my noble friend suggests. But they are certainly far less spurious than the pre-legislative referendums that we have seen. And, if I may say so, they are less spurious than the argument put forward by the noble and learned Lord, Lord Williams of Mostyn, when he said that a post-legislative referendum would,take away from the authority of Parliament. I believe that to be wrong".—[Official Report, 24/1/01; col. 298]How one could put forward that argument for a post-legislative referendum and not for the pre-legislative ones for which this Government have had such a leaning is obscure. Perhaps the noble and learned Lord, Lord Falconer, will address that issue when he replies. The one gives the people a chance to vote on the considered views of Parliament. The other—dare I say it—is a populist device that can be thrown in the face of Parliament to restrict its room to alter what Ministers have proposed.
There are difficulties with the detail of what my noble friend has proposed. But the right place to explore those is in Committee. He has raised issues of profound importance in our evolving constitution. I look forward to further debates on the Bill as it proceeds through this House.
§ 8.58 p.m.
§ The Minister of State, Cabinet Office (Lord Falconer of Thoroton)
My Lords, I join with noble Lords in thanking the noble Lord, Lord Campbell of Alloway, for moving the Second Reading of the Bill. The Government do not support it or think it an appropriate Bill. However, I agree that it raises a number of important issues which have been dealt with in an impressive and succinct debate.
I pick up the starting point to which the noble Lord, Lord Henley, referred. This is part of a trio of debates over the past 10 days. We have had the Second Reading of the Parliament Acts (Amendment) Bill. A week ago the noble and learned Lord, Lord Simon of Glaisdale, introduced a debate on the Parliament Acts and the Salisbury convention. We now have this debate. They are all about the powers of this House. Should there be referendums? In what circumstances? What should be the terms in which those referendums take place? Who should determine the question?
It is obvious from the Government's stance on other matters that we think that, from time to time, there is a place for referendums in the constitution. We believe that that should be decided on a case-by-case basis.
However, we believe that the Bill is unnecessary and inappropriate. It is unnecessary because there is nothing to prevent this House, on the advice of the Constitution Committee or on its own initiative, proposing, before the measure comes into force, an amendment to a Bill to provide for a referendum. I was confused by the speech of the noble Lord, Lord Henley, who appeared not to accept that what he was 781 describing already existed. It is open to this House to pass an amendment to prevent a Bill coming into force until there had been a post-legislative referendum. Such an amendment would then have to be considered by the other place. That would have the same effect as the proposal made by the noble Lord, Lord Campbell of Alloway.
§ Lord Campbell of Alloway
My Lords, with the greatest respect, we are going adrift. Clause 101(2)(a) of the Political Parties, Elections and Referendums Act 2000 prohibits either House from resolving that there should be a referendum. It says that referendums must be ordained and called by the Government.
§ Lord Falconer of Thoroton
My Lords, as I understand it, having regard to parliamentary sovereignty, there would be nothing to prevent this House amending a Bill so that it could come into force only after a post-legislative referendum. If the noble Lord suggests that the Act that he referred to has entrenched provision, he is enunciating a new constitutional doctrine.
Our second argument is that the Bill is inappropriate. By that I mean that it is wrong that this House should have such a power of initiative over the use of a referendum. Thus far, the use of a device that some still regard as alien to our constitutional arrangements—that feeling was reflected in the debate—has occurred only in response to government proposals for change. The Government have justified the use of the referendum on a case-by-case basis. We believe that that is the best approach. Specific legislation will enable a referendum to be held on the particular issue.
The approach suggested by the noble Lord, Lord Campbell of Alloway, is fraught with risk. First, there is a risk that this House and the Government will disagree on whether a measure is suitable for a referendum. The Government believe that the use of the referendum should be exceptional. Leading on from that and looking at the situation in a practical, realistic light, that can mean only a great likelihood of disagreement between the two Houses. The same could occur if this House inserted a clause in a Bill providing for a referendum, but I venture to suggest that a dispute in which this House had some special power of initiative, as the Bill implies, would be significantly more acute than one that arose from the normal legislative process. The Bill would give the House of Lords a special place. Although it says that the other place has to agree, it would give rise to a more acute constitutional issue than a simple disagreement over an amendment to a Bill.
Let us imagine that the Government place before Parliament a measure, foreshadowed in the party's manifesto, that has broad constitutional overtones but is not suitable, in their view, for a referendum. The House of Lords might take a different view on the appropriateness of a referendum and use the powers accorded under this Bill to resolve that there should be 782 one. If the other place then rejected that view, as Clause 2 would entitle it to do, where would we go from there? It would be a dead stop.
That brings us to the related issue of the Salisbury/ Addison convention. In the case of a major disagreement of principle over government legislation, the Government would argue that the Commons must have its way under the Salisbury convention. I beg leave to doubt that any government would act differently.
The House knows the noble Lord's response. He spelled it out last Wednesday in the debate on the Motion of the noble and learned Lord, Lord Simon of Glaisdale, on the subject of the Parliament Acts and the Salisbury convention. He said:The achievement of parity voting potential constitutes a fundamental change of circumstances which deprives the Cranborne convention as such of any justification today".—[Official Report, 24/1/01; col. 284]As I understand it, the noble Lord believes that the House of Lords Act 1999 has changed everything, hence, unless I misunderstand him, if the other place and this House are in dispute, this House has the right to vote the measure down. That would leave the other place needing to rely on the Parliament Act, described by the noble Lord, Lord Strathclyde, as a constitutional nuclear weapon.
§ Lord Campbell of Alloway
My Lords, I should correct this before there is a misunderstanding. The quotation that the noble and learned Lord gave is right. I am fully prepared to reaffirm it today. However, that does not mean that an updated version of the Salisbury convention, which the Royal Commission recommended, ought not to be arrived at and agreed by consensus. I certainly do not adhere to and have never expressed the view attributed to me that, by and large, the Government ought not to have their business.
§ Lord Falconer of Thoroton
My Lords, I am slightly confused. The noble Lord, Lord Campbell of Alloway, explicitly said that what he called the Cranborne convention had gone. He did not say what should take its place, except that, in principle, the Government should have their business. We have no idea what the position of a manifesto Bill would be. Is that part of the Government's business? Does it go wider or not so far as the Salisbury/Addison convention? If the approach of the noble Lord, Lord Campbell of Alloway, were to be adopted, we would be left in a total constitutional limbo.
I return to my earlier point. If one follows what the noble Lord, Lord Campbell of Alloway, said, one is left with the need to rely on the Parliament Act—the constitutional nuclear weapon, as the noble Lord, Lord Strathclyde, described it both in the debate started by the noble and learned Lord, Lord Donaldson of Lymington, and that initiated by the noble and learned Lord, Lord Simon of Glaisdale. The reason why the Parliament Acts attract such a 783 dramatic image is that their use has been rare. That has been true because the House has accepted the Salisbury convention, going rather further—
§ Lord Simon of Glaisdale
My Lords, the noble and learned Lord must be oblivious to recent political history. The Parliament Acts have been used quite promiscuously and routinely on such matters as the Criminal Justice (Mode of Trial) Bill, the European Parliamentary Elections Bill, and one other Bill. I am so sorry. If the noble and learned Lord has finished, I shall continue with my remarks. The Parliament Acts have not been kept in reserve for major matters as a nuclear weapon or nuclear strike; recently they have been used routinely when the Government have wanted to get their way following a difference of opinion between the two Houses.
§ Lord Falconer of Thoroton
My Lords, I apologise to the noble and learned Lord for talking to the Clerk while he was speaking. I was trying to find out the number of occasions on which the Parliament Act has been used in recent years. The word that the noble and learned Lord used in his speech was "habitual". I strongly contest that.
§ Lord Falconer of Thoroton
My Lords, the noble and learned Lord said "promiscuous" then and, in the course of his speech, "habitual". With respect, I suggest that that is an over-dramatic description of the number of times that the Parliament Act has been used. I do not know the precise number of occasions on which it has been used since 1st May 1997, but I have been prompted to say "twice".
§ Lord Falconer of Thoroton
My Lords, it was not used in connection with the Criminal Justice (Mode of Trial) Bill. The noble and learned Lord may be right that it was three times, but let us assume it to be twice. It is hard to describe that as either "promiscuous" or "habitual". I prefer the description of the Leader of the Opposition in this House, which is that it has been used as a constitutional nuclear weapon.
If in future this House acted as though the Salisbury convention were no longer valid and rejected the philosophy of restraint that it has, in my view very wisely, accepted until now, assuredly the reaction from the other place to regular defeat applied to measures that have passed the House will be greater use of the Parliament Act.
Taking the views of the noble Lord, Lord Campbell of Alloway, on the obsolescence of the Salisbury convention together with the powers which his Bill proposes for this House, I would be genuinely concerned that the effect of the Bill would be to make disputes between the two Houses on issues of principle a good deal more likely. I cannot believe that it would be desirable for this House to seek to acquire powers 784 that might cause a clash with the government of the day on a point of fundamental principle over its legislative programme. Plainly, the Bill seeks an acquisition of power by this House.
As I have said before, I recognise that your Lordships could insert a clause into any Bill which would call for a referendum on the legislation before it came into law. That would be an available use of your Lordships' power provided that the clause did not constitute a wrecking amendment, as the noble Lord's own amendment at the Committee stage of the House of Lords Act was in practice, although, I accept, not in intent. However, this measure invites your Lordships to take special powers over a class of Bill and, moreover, one not defined in advance. This is becoming all too close to taking power which, in effect, queries the primacy of the other place. I cannot believe that that is a step which your Lordships would wish to take.
In summing up, the Government view the Bill as unnecessary and believe that, at worst, it may lead to clashes with the other place which could only be harmful in the long term. Therefore, for the reasons given, the Government oppose the measure.
§ 9.13 p.m.
§ Lord Campbell of Alloway
My Lords, I thank all noble Lords who have spoken in this debate. It has been an interesting and good-humoured debate and I do not want to spoil its atmosphere by indulging in an argument at this hour of the night with the noble and learned Lord, Lord Falconer of Thoroton.
If the Bill is given a Second Reading, we will have ample opportunity to deal with the Minister's misunderstanding of the Bill's principle and effect and of my approach to the Salisbury convention. It would not be appropriate for me to deal with that matter tonight; I simply place my concern on record.
I thank my noble friend Lord Norton of Louth, whom I asked to come along and oppose the Bill, which he did awfully well. One cannot, at this hour of the night, or at any hour of the day, deal with what is called root-and-branch principled opposition, which is blind to argument. Trying to do so is a waste of time. I am fully content to leave the matter to the sense and composite wisdom of the House in due course; the House will take the decision.
There is a considerable distinction between the attitude of the noble Lord, Lord Dahrendorf, who supports the principle of the Bill, and that of my noble friend Lord Norton of Louth, who opposes it. The noble Lord, Lord Dahrendorf, took the point about the frequency of occasions on which provisions in Bills affect the constitution. I totally agree with him; he gave all of the examples that were in my mind and made an important point. But the noble Lord said that that frequency meant that one should not have a referendum or any such mechanism. I say quite the contrary: the terror, the danger and the absence of control mean that there must be a mechanism, and the only mechanism is a referendum. So one gets into a circuitous argument which, again, one cannot pursue at this hour of the night.
785 According to my scribbled note, the noble Lord, Lord McNally, thought that there was an automatic trigger mechanism for a referendum. With respect, that is a misunderstanding of the Bill's intention and, indeed, of its drafting.
I thank the noble Lord, Lord Chalfont, and my noble friend Lord Dean of Harptree for supporting the Bill's principle and for arguing that a safeguard needs to be provided. In view of the changes of procedure in another place, there are no adequate safeguards.
I respectfully ask noble Lords to give the Bill a Second Reading, so that further debate may ensue on some of the matters that I have mentioned. That may perhaps allow for their constructive resolution.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.