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Earl Russell: In the University of London I used to teach the optional subject constitutional history. When we came to syllabus reform, we had to consider what was a matter of major constitutional importance. To do that for myself I found extremely difficult. To do it to produce the agreement of a committee I found totally impossible. Constitutional importance is like beauty; it is in the eye of the beholder. What is perceived as constitutionally important in one generation may be perceived as profoundly unimportant in another.

I also deeply share the misgivings expressed by the noble Baroness, Lady Fookes, about giving those powers to the Speaker of another place. I know that the Speaker has to be dragged to the Chair; I do not want that to become more literal than it is at present. With this amendment in place, it could become very literal indeed.

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Madam Speaker, or Mr Speaker as he might be on another occasion, is trained to make decisions according to the procedural rules of the House of Commons. That is her or his special excellence. That special excellence does not confer a power to decide what is of major constitutional importance. Those are extremely sensitive political decisions falling on an office supposed to be impartial. If they fall on the judges, that would be better because they take decisions according to rules which are themselves not at all political; they are quite different rules--statutory construction, interpretation of words and precedents.

Also, it would be extremely difficult for the Speaker of another place if the question of alleged constitutional importance concerned the relations between the two Houses of Parliament. I have absolutely no doubt that the Speaker's decision would be impartial; whether it would be perceived to be so by everybody in this Chamber is a question on which I have some misgivings. Even if it were possible to reach agreement on what is a matter of first-class constitutional importance, it does not follow that everything that follows is suitable for a referendum. 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. But I dread the thought of explaining the case for a referendum on that to the voters.

We should remember what happened in the referendum in France on the presidential term. The turn-out was more dismal than anything we have had here. If this amendment were to be put in place, it would open not a can, but a magnum of worms.

10.30 p.m.

Lord Cope of Berkeley: The Committee will be grateful to the noble Lord, Lord Owen, and his colleagues for setting up the debate. It has been interesting and important. In the course of introduction, the noble Lord reminded us that as regards general referendum, the issue dates back to 1975 when the referendum took place on the European Community. That was undertaken in order to deal with the Labour Party's problem, as he rightly set out.

However, it did not decide the issue. The issue had been decided in the previous Parliament by an Act of Parliament. As my noble friend Lord Dean and other noble Lords will remember, as a Bill, it was subjected to the process of constitutional Bills; that is, a long and elaborate Committee stage on the Floor of the House, which is unusual in another place. The noble Lord, Lord Owen, also said that the purpose was to take party politics out of the decision on when to have a referendum. I disagree with that. I do not believe that in practice that would be achieved.

However, several other matters have received attention in the debate. First, I turn to the definition of the phrase "first class constitutional importance". No one has attempted a definition or much in the way of guidelines, and nor does the amendment. The

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amendment avoids the question by offloading it on to the Speaker. However, as has been pointed out by a number of speakers in the debate, including my noble friends Lord Norton and Lady Fookes, the noble Lord, Lord Alderdice, and the noble Earl, Lord Russell, the Speaker does not make decisions of this character. The Speaker in another place interprets and enforces the Standing Orders of the House of Commons.

Those of us who were Members of another place know that its Standing Orders are far more elaborate than those in your Lordships' House. Here, the Standing Orders are extremely brief. The Companion is almost as forceful as the Standing Orders and is more detailed but in the House of Commons everything that is in the Companion, and a good deal more, is covered by the Standing Orders. The Speaker's primary duty is to run the House in accordance with those Standing Orders.

It is true that daily that involves important and difficult decisions by the management of the House, but it does not involve the controversial decisions which could be involved in this matter. It would put in danger the independence of the Speaker. Occasionally the independence of the Speaker has been challenged. People have thought that the Speaker of the day was not as independent as he or she might have been, and therefore that difficulty has not been wholly avoided by the chair. Nevertheless, the amendment would introduce that provision more strongly. Reference is made to "the Speaker" in order to avoid the difficulty of defining what is "of first class constitutional importance", but I do not think we can get out of it that easily.

We all expect that in due course there will be a referendum on the euro. Sometimes the Government argue that because that is only an economic matter, not a constitutional issue, it must be decided by economic tests and the constitutional element is unimportant. That view is not shared by a large number of people, including myself, who believe that the constitutional aspects of the euro are as important as the economic aspects. But if the Government's view that the constitutional aspects are very much subsidiary to the economic ones prevailed, presumably that matter would be regarded as being of second-class, not first-class, constitutional importance.

The other part of the test is the question of divisions of public or parliamentary opinion. There are ways to measure levels of controversy. As far as concerns public opinion, one measure is the turn-out at referendums. The turn-out in the Welsh referendum was extremely low and showed that that was not a matter in which the people of Wales had as much interest as had been first thought. As has emerged in the course of the debate, there are all kinds of issues which can be regarded as being of first-class constitutional importance in which the wider public have little interest and knowledge. This was expressed to an extreme degree by the noble Earl, Lord Russell, who referred to the Joint Committee on Statutory Instruments.

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I believe that the underlying difficulty is the lack of a written constitution. Although I do not advocate for a moment that we have one, most of the constitutions that exist in the world have a number of features. One is that the constitution sets out the powers of the parliament, judges and so on and then provides a mechanism for altering the constitution itself. Invariably, that has more complicated hurdles--larger majorities, and so on--than a mere change in legislation by way of Act of Parliament or whatever. In that way the countries decide in their written constitutions exactly what is to be regarded as of sufficient constitutional importance to place greater hurdles in the way of change.

It is not quite true to say that we have no written constitution; we do, but it is combined in all kinds of different documents; for example, Acts of Parliament. For that matter, the Standing Orders of both Houses are in a sense part of our constitution. There are also constitutional conventions which are set out only in books, commentaries and so on, rather than in a definitive piece of legislation. But the difficulty of a provision of this kind, which is not avoided in this particular amendment, lies in deciding what constitutes a matter of first-class constitutional importance.

In Amendment No. 226, reference is made to,

    "divisions of public opinion or parliamentary opinion".

Amendments Nos. 223 and 227 in the name of my noble friend Lord Mackay of Ardbrecknish (who I am delighted to see has joined us) are directed to this point. My noble friend's proposal is that a referendum should also be held on receipt of a petition signed by 5 per cent of the relevant electorate. That is a substantial hurdle, but it is an objective measure to decide where, in respect of a particular matter, there is a significant amount of public opinion in favour of a referendum. It has that advantage over the primary amendment in this group, Amendment No. 226.

My noble friend has another amendment in this group, Amendment No. 228. That goes to the question of when the referendum should be held. It was expressed in the debate as being a question of whether there should be a post-legislative referendum or a pre-legislative referendum. My noble friend Lord Cranborne gave the example of the pre-legislative referendums in the Welsh and Scottish cases two years ago. That should not encourage us to have pre-legislative referendums.

Lord Goodhart: I am grateful to the noble Lord for giving way. Does he regard the pre-legislative referendums on Scotland and Wales in 1998 as being a worse example than the post-legislative referendums in 1978?

Lord Cope of Berkeley: The short answer to that is yes. It is better to have a fully formed proposal that has passed through Parliament and become an Act of Parliament and is then confirmed or not by the electorate, rather than a vague suggestion, which is what was incorporated in the two pre-legislative

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referendums in Wales and Scotland two years ago. That makes the referendum a much more sensible and reliable guide to what is happening. Otherwise, people when voting for a vague idea, as it were, do not necessarily know exactly what it is they are voting for, or, for that matter, against.

Amendment No. 222 moved by the noble Lord, Lord Owen, is neither pre-legislative nor post-legislative because the Speaker's certificate is granted after the Bill has been introduced into the House of Commons. The referendum takes place presumably before further stages of the Bill proceed. It is only when the referendum has been completed--if it is approved--that the Bill would then proceed on its parliamentary course. I am assuming that from reading the exact terms of the amendment.

That is probably the least satisfactory of the options that are available. But it flows from the Speaker making the decision of constitutional importance. It would frequently get us into trouble with the sessional business because if a Bill was introduced into another place, the Speaker would make up his or her mind, the referendum would take a number of months to set up and to be put in place and then the Bill would restart again quite a long way through that parliamentary session, even if it had started on day one. Therefore, we might need a further provision to carry over such a Bill. I am not in favour of that as a principle, but I think it is an awkwardness of the way in which the amendment has been drawn up. This has been an extremely interesting debate. I have no doubt that the questions raised by this group of amendments will continue to be matters themselves of controversy. They will also be matters of first-class constitutional importance.

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