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Lord Kirkhill: I wonder if I might intervene very briefly. I had not intended to do so, but the noble Lord, Lord Campbell of Croy, has mentioned me in his remarks, and they were indeed complimentary remarks, or so I take them to be. Perhaps I may say to the Committee quite quickly that 20 years ago I was faced with a significant phalanx, including the noble Lord, Lord Campbell of Croy, the noble Earls, Lord Onslow and Lord Lauderdale, and numerous other Peers too many to mention. I was absolutely terrified, and I gave in far too readily, I think.

Lord Renton: The importance of this matter depends very much upon the view that we take of abstentions. Votes on a referendum in which there is merely a vote for or against are different from those votes which take place in a parliamentary election, when there may be at least three parties contesting with each other and a number of candidates involved. Abstentions are therefore of less importance on those occasions, but in a referendum, the essence of which is whether one should vote for or against or not vote at all, the effect of abstaining is exactly the same as voting against. May I give some figures in order to illustrate this? What happened in 1979 bears this out.

Let us suppose that 35 per cent. of the people of Scotland or of Wales vote for a parliament, and supposing 30 per cent. vote against, there would be perhaps another 20 per cent. who might feel that it is not necessary to vote because they are not voting "for". Therefore we would find the position that only 35 per cent. of the people were in favour and 50 per cent. were in

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fact against but did not all trouble to vote: 30 per cent. did trouble to vote and 20 per cent. abstained. That is a very unsatisfactory way of assuming that the introduction of a new parliament should take place. I hope that the Government will bear this in mind, and my noble friend Lord Campbell of Croy has made a very important point. We must consider the effect of abstentions.

Lord Howie of Troon: I sincerely hope that the Committee will not be beguiled by that argument. If an abstention is to be thought of as a vote against, the person who abstains can in fact vote against. It is not difficult to do: he goes along and makes his mark. If on the other hand he abstains he has abdicated, and therefore his opinion is of no account. It should not be considered as a vote against. I notice that my old friend Lord Renton shakes his head: he can shake his head until it falls off but it makes no difference. The man who abstains has abdicated and he has given up his right to be counted, and certainly to be counted as being against. If he is against he can go and put his mark down like the rest of us, who are actually for.

Lord Crickhowell: I should like to follow up that particular point, which is a very important one, although perhaps more important to the electorate than to your Lordships. A firm message has to be delivered to those who do not want the Government's proposals: on this occasion they have to turn out and vote. It is a message that those who are against the proposals of the Government, both for Scotland and Wales, have to deliver loudly and clearly.

I want to make a slightly different point. A White Paper will be put before us in due course. As the Bill is at present drafted, in Wales at any rate there is simply a referendum question about a Welsh assembly. An assembly is a pretty vague sort of organisation. We shall have from the Government in due course some detail of what that assembly is to do, its powers and their limitations, and its duties and functions. But quite clearly a lot more will emerge when the actual Bill setting up the assembly is put in place.

It is important to realise that even if there is a vote in favour of setting up an assembly that should not preclude Parliament from disagreeing about the details subsequently put forward by the Government. I can just see what will happen if the proposal for an assembly is carried. A Bill will be presented to us. We will be told that the Government have the approval of the people and it would be quite improper to disagree with any of the individual clauses or component parts of what is put before the House. We need to nail that one pretty early. It may well be that the Government will get a "Yes" vote for the general proposition that they have put forward, but the Government must understand that while we may well accept--indeed it would be correct to accept--the will of the people on the general proposition, they should not subsequently argue against

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the right of Parliament to deal very precisely with the detail and to disagree with the individual components if these do not seem to be practicable or sensible.

Baroness Carnegy of Lour: On the four Scottish questions it will be even more important, it seems to me, for the Government to make it plain to people that this is an advisory referendum. They have already said that it is and they need to make this plain, whether or not that is in the Bill. There may be great difficulty in interpreting what people want from the four different voting choices, as my noble friend Lord Mackay enumerated at the beginning. One could imagine a very difficult decision having to be made when it comes to interpreting where the strength of opinion lies and whether in fact there is a majority for anything, or what there is a majority for. If my noble friend Lord Campbell of Croy intends to withdraw the amendment--and from what he said I think he probably does--it is extremely important for the Government to undertake to make it plain again and again that this is an advisory referendum and that people are free to interpret it as they wish. They should do so if that is their intention.

Lord Campbell of Alloway: I should like to express my support for my noble friend. In effect, what we have done is to start speaking to Amendment No. 39 which has not been grouped. Any question of something being advisory, be it in the Bill or be it understood in the manner proposed, is terribly important. The way in which the reflection, mentioned by the noble Lord, Lord Sewel, is translated into a decision is very much assisted by Amendment No. 39. In due course, when we come to deal with that amendment--I shall not spend time on it now because it speaks for itself--the hope is that consideration will be given to that fact.

Lord Stewartby: I am sorry that the noble Lord, Lord Peston, is no longer in the Chamber because I should like to respond to the question he posed during the debate on the previous amendment. It touches on the question of the validity of the referendum and how it should be received, not only by Parliament but also in a sense of how much moral commitment there may be as a result of it.

In moving the amendment, my noble friend Lord Campbell of Croy put his finger on a very important point; namely, that there is a difference between a referendum held before legislation is brought in and debated and one which is introduced afterwards as a validating mechanism in terms of public opinion. I can only speak for myself--and I do not know whether my noble friends will agree with me--but I would regard the results of any referendum held in advance of legislation as being less valid than one which was held afterwards.

Therefore, I would not necessarily say that I would accept the result of that referendum as being binding in the moral sense. I shall not go into the constitutional issues raised by the noble and learned Lord, Lord Simon of Glaisdale, although I do not dissent from him in that respect. However, if we say that we pay regard to public

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opinion and that we accept the validity of a properly conducted test of that opinion, then, even if there were no change to the legislation after it had passed through Parliament and even if that legislation precisely reflected the terms of the White Paper, I do not believe that the effect of a referendum would be the same before and afterwards. I say that because the purpose of the referendum afterwards would be to validate a process which would be much more thorough and which would undoubtedly have been discussed in greater detail, with the implications being much better understood by all those who took part in that debate. Therefore, if the vote is "Yes", I would not regard a referendum held in advance of legislation as being more than an indication that there is support in public opinion for bringing forward the legislation.

Lord Rees-Mogg: I should like to express a certain feeling of sympathy for the Government as regards the amendment. It is perfectly true to say that a referendum can only be an advisory mechanism. Parliament is sovereign, but a referendum is not sovereign in that sense: Parliament will still have the duty to scrutinise the Bill in detail. However, if the amendment is accepted, it seems to me that people will start to suspect that the Government are moving away from accepting the relevance and importance of the referendum.

If the Government do introduce a referendum measure and do in fact hold a referendum, clearly the moral obligation on them will be very great. There seems to me to be a danger that people will start to believe that the Government are resiling from recognising that moral obligation, while in fact they are quite correct to recognise that this referendum can only be an advisory one so far as concerns Parliament as a whole.

4.45 p.m.

Lord Mackay of Ardbrecknish: My Lords, the noble Lord, Lord Rees-Mogg, made a very interesting point and one to which the noble and learned Lord, Lord Simon of Glaisdale, referred in our first debate; namely, that in our constitutional position referendums cannot bind Parliament. However, if we are to go down the road of referendums--and this is perhaps a rather wider debate than just this particular referendum--we must address ourselves to the question of whether referendums should bind Parliament. Whether or not they bind governments is, of course, another question of, dare I say, lesser importance. Government can feel bound by a referendum but Parliament could still refuse to follow the Government's advice and decide that it was not bound by the referendum decision.

Post-legislative referendums are rather easier to position in the constitutional arrangement because Parliament has decided on a piece of legislation, whatever it may be, and it has then decided to ask the people, "What do you think about this piece of legislation?". My recollection of the 1979 Act was that the relevant clause said, essentially, that if the Scottish people agreed with it, then it would be enacted and carried out; but if they did not agree, then it would not be. The position there was quite clear. If my memory

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serves me correctly, both Houses of Parliament had debated the issue over two or three years and, quite clearly, had come to a decision, an Act of Parliament had been passed and the question was then put to the people. There is a good argument for saying that, in those circumstances, the results of the referendum really ought to be binding. If we are to travel down the road of having referendums, then, as I said on Second Reading, this is one of the many issues which I believe the Government must address in a single referendum Act so that the rules are clearly set down.

However, pre-legislative referendums are different. As the noble Lord, Lord Rees-Mogg, just said, Parliament has still to consider the detail. Therefore, there seems to me to be a conflict between our concept of parliamentary democracy and of Parliament being sovereign, and the concept of having referendums. But the matter is not resolved when one considers what I understand is becoming Holy Writ in this Chamber; namely, that every time we ask a question of the Government we are referred to the Labour Party manifesto. Therefore, I thought that I would refer to that document. All it tells me is this:

    "As soon as possible after the election, we will enact legislation to allow the people of Scotland and Wales to vote in separate referendums on our proposals, which will be set out in white papers. These referendums will take place not later than the autumn of 1997. A simple majority of those voting in each referendum will be the majority required".

We shall return later to some of these issues.

    "Popular endorsement will strengthen the legitimacy of our proposals and speed their passage through Parliament".

Although I can read between the lines, the document does not actually tell me that the Government will consider the results to be mandatory. Indeed, they are not necessarily mandatory.

We should perhaps look at the experience of those countries in which referendums or plebiscites are held. I have in mind two in particular. If we consider the position of Switzerland which has very much built its whole constitutional arrangement on referendums, it is clear that there is absolutely no doubt as to the legal position of a referendum held in that country. There are a number of mechanisms to consider, some of which are quite interesting and important from our point of view as regards how other people run referendums. From the details of the first example contained in the booklet that I have with me, it is interesting to note that they relate to a point made by the noble Lord, Lord Peston; namely, that:

    "There is nothing to prevent another referendum being requested as soon as one has been held. Many laws have been defeated only to be approved a second time round".

However, the important points are as follows:

    "All types of referendum are binding in their outcome. No referendum can be overruled unless by another referendum. The Swiss Supreme Court cannot declare any referendum decision unconstitutional".

I am grateful to my friend Professor Ross Harper who outlined the Swiss position in that booklet. Those are the important aspects of the Swiss constitutional arrangement. It is perfectly clear that whatever a Swiss referendum is about, the result is binding. Everyone in

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Switzerland who enters a referendum campaign knows the rules of the game; namely, the result of a referendum is enacted.

In the United States of America there is a slightly different arrangement in that there are non-binding referendum ballots. Those Members of the Committee who take even a passing interest in American elections will know that a number of propositions are printed on the ballot paper with which people may agree or disagree. As I understand the position, those can be overruled by the courts, although that may still be a matter of dispute in California. However, the measures are certainly not binding in the states where they are held. I contrast the position in Switzerland, which has rigid, binding rules as regards its referendums, and the United States which does not.

On Second Reading I said that I thought the report of the Commission on the Conduct of Referendums should be compulsory reading for those Members of the Committee who are taking part in this debate. I certainly found it interesting. The report states that,

    "Whether a referendum is regarded as advisory or mandatory is a political issue".

I ask the Government to give me their views on that. The report continues,

    "A referendum can be mandatory only to the extent that a Government binds itself to accept the result. That would depend on the referendum issue, and possibly on factors such as the turnout or the size of the majority ... Although a Government could commit itself, Parliament could not be bound by the result".

I do not argue with that statement. I believe that the noble Lord, Lord Rees-Mogg, expressed that in his own words, as did the noble and learned Lord, Lord Simon of Glaisdale, earlier this afternoon. However, a problem arises with regard to the political situation in Scotland because the Scottish Constitutional Convention, in which the Labour Party and the Liberal Democrats were partners, has decided upon the interesting constitutional arrangement that sovereignty resides with the Scottish people. If sovereignty resides with the Scottish people, surely that means that the referendum and any referendum ought to be binding.

The Government may not accept that sovereignty resides with the Scottish people. Some of us recall Mr. Blair's visit to Scotland during the election when he "pooh-poohed" that concept pretty bluntly and said that sovereignty resided with him. To be fair to him, I think that was a slip of the tongue. I believe he was being collective and that he meant to say that sovereignty resided with him as a Member of Parliament together with his fellow Members of Parliament. Perhaps he was being a little slipshod in his language when he said that it resided with him. Perhaps certain Labour Members of Welsh constituencies are beginning to feel that sovereignty resides with him, but that is an aside.

I am not a constitutional expert and I notice that the noble Lord, Lord Williams of Mostyn, is to reply to this amendment. I speak in terms of a pupil asking a master for some advice on this matter. There are other noble and learned Lords in the Chamber who know a great deal more about these matters than I do. I may be

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over-simplifying the matter but if the Scottish Constitutional Convention is correct, and the Labour Party and the Liberal Democrats have decided that sovereignty rests with the Scottish people, it seems to me they are saying that the results of referendums must be treated as mandatory. That seems to me to conflict with the position held by the Houses of Parliament. I hope that the noble Lord, Lord Williams of Mostyn, will address that matter.

My final point on the matter of advisory or mandatory referendums is the following. If we are to have many referendums in the future, if there is a lowish turnout in a referendum--that is a subject I shall address later--and if the proposition is barely agreed to and the Government decide in their wisdom (and more particularly Parliament decides) that they will not accept the result of the referendum and that they will not enact the result of the referendum, I dare to say that I suspect there will be a considerable backlash against Parliament. I believe people would say, "There they are; they are just ignoring us as usual. They ask our advice but when it does not suit them they just kick it into the long grass and ignore it". It would be a serious matter if we got ourselves into such a position. The position would be helped a little if it were made clear that the result of every referendum was to be advisory and that Parliament would not be bound by it. However, I believe that that would help only a little because, if the people have spoken and Parliament decides to ignore what they have said, that would cause a great deal of trouble and Parliament would be at the receiving end of criticism from the people and particularly from the press.

Those Members of the Committee who have ever sat in another place will know what I am talking about on my next point. Those of us who have had to seek election know that one of the constant questions we are asked is why we do not hold a referendum on the death penalty. I do not wish to discuss the death penalty, but we all know that after horrific events have taken place if a referendum on the death penalty were held there would be a majority in favour of it. Every Member of the Committee who has ever had to argue with a difficult constituent on that matter knows how difficult it is to tell him or her that one has to leave that decision to Members of Parliament. I shall not discuss the Burkean analysis of the duties of Members of Parliament, but that is a difficult argument to put across to people. The position would be made even more difficult if we had asked people their views in a referendum and then decided not to accept the result of that referendum. I hope that the noble Lord, Lord Williams of Mostyn, will address those important points when he replies to the amendment of my noble friend Lord Campbell of Croy. I hope he will discuss issues wider than the referendums on Scotland and Wales and that he will discuss other referendums that may be held in the future. I hope he will give us an inkling on the Government's thoughts on these issues.

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