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Lord Goodhart: I am afraid that I am unable to agree with either of these amendments. The amendment moved by the noble Lord, Lord Mackay of Ardbrecknish, is subject to a very serious flaw; namely, that it is dependent on a proporiton of the eligible voters turning out to vote. That could produce an entirely absurd result. Somebody may go to the polls in order to vote "no" but because he has cast his vote that may result in the "yes" campaign winning the election because his is the vote which is necessary to bring the total number of voters up to 60 per cent. Something very much along those lines seems to have happened in Italy, as the noble Lord, Lord Mackay, pointed out, because Mr Berlusconi persuaded his supporters not to vote and as a result the necessary 50 per cent turnout was not achieved. Anything which can produce a result as absurd as that seems to be wrong.

The system proposed by the noble Lord, Lord Norton of Louth, is somewhat technically better in that it requires not the total vote to be a certain proportion of the electorate but the number voting in favour to be a certain proportion of the electorate.

But that too suffers from defects. In particular, 40 per cent is an absurdly high figure. It would result in a relatively close vote in having to produce a turnout that would be extremely high; for example, if there is a referendum in which 39 per cent of the people vote "yes" and 32 per cent vote "no", one would say that that is a fairly clear majority. Seventy-one per cent of the electorate voted, which is roughly equivalent to the turnout in a general election and certainly far higher than is usual in referendums, but the vote would not have counted.

If there is to be a minimum figure, it would have to be something much lower and certainly no higher than 25 per cent of the electorate. However, it seems to me that there are strong arguments for saying that there ought to be no minimum figure at all. Clearly, that is undesirable because one may end up in the Italian situation where it is clear that the overwhelming majority who are interested in the subject will vote one way, but their views will not take effect because, although there are hardly any votes against, a large number of people have not bothered to vote.

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The answer to that goes back to the debate on the amendment tabled by the noble Lord, Lord Owen, that referendums should be used only in circumstances where there is a serious issue that attracts a high level of public interest. That certainly has been the case with referendums held in Northern Ireland and it was the case in relation to the last one held in Scotland. I believe that the answer is not to set a minimum figure, but simply to ensure that in practice the Government do not hold a referendum unless there is a subject of sufficient interest to attract a large turnout. We do not want another result like the London referendum, where the turnout was frankly derisory.

Baroness Blatch: Can the noble Lord comment on the Welsh referendum, in which 75 per cent of the Welsh people either did not vote for the Assembly or voted against it?

Lord Goodhart: Undoubtedly the Welsh referendum was a difficult matter, as the Neill committee concluded. Aspects of it, particularly regarding the funding of the "no" vote, were matters for serious concern. Having said that, it would be consistent with the views that I expressed that the Welsh vote had to stand, because I do not believe that it was appropriate to impose a minimum requirement. As it happened, there was a narrow victory, but, more than a year after the Assembly was set up, it is fairly clear that there is no prospect, or no wish, to return to the previous situation.

11.30 p.m.

Lord Norton of Louth: I rise to speak to Amendment No. 244 standing in my name. I appreciate the point that has been made already by my noble friend Lord Mackay. It is fairly late and I am conscious that I am addressing an audience of about the same size as would attend one of my seminars on this subject. I do not propose to detain the Committee for as long as I would normally detain a seminar.

Earlier I made clear my stance on referendums. In principle, I am opposed to them. If they are to be held, some degree of regulation must be imposed. As has been mentioned, my amendment would impose a threshold requirement of 40 per cent of those eligible to vote. At Second Reading I indicated my view on the desirability of a threshold. The Minister, in replying to the debate, did not have time to touch upon it, but with his usual courtesy he wrote to me on the subject. As in an earlier debate, I intend to respond to the argument that he kindly indicated in his letter. His basic and straightforward proposition--essentially the one advanced by the noble Lord, Lord Goodhart--is that a simple majority should be sufficient. The argument of the noble Lord, Lord Bassam, was that that was the normal practice.

As an academic, I shall answer "yes and no". I accept that it is an entirely appropriate and normal practice from which we have not deviated for elections to public office. However, there is an important qualitative distinction between elections to public office and referendums. In elections, we elect people to

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hold office for a set period. If we do not like what they do, they can be turned out. My noble friend Lord Mackay of Ardbrecknish has pointed out that the decision made in a referendum may last for a considerable period--it may even be permanent. That is not always the case. Referendums do not settle issues to the extent that many people believe. None the less, they may put in place a ratchet effect that is very difficult to reverse. That is the essential argument in principle for having a threshold in a referendum and not in a normal election of candidates.

There is also a distinction to be drawn on turn-out, which tends to be lower for referendums than for elections of candidates. However, that is not an argument of principle.

Following the point made by the noble Lord, Lord Goodhart, the qualitative distinction requires a relatively high threshold. I have chosen 40 per cent for two reasons. The first is that there is a precedent, which I shall come back to. The other is that it is not an absurdly high limit. My proposal seems quite modest compared with that put forward by my noble friend Lord Mackay.

I understand the objection to the proposal of 60 per cent. If 59 per cent of those who were eligible turned out and voted in favour, that would be a remarkably high majority. One can anticipate the argument that would be advanced by those on the winning side, because they would feel that they had been robbed. My proposal is for less than an absolute majority of those eligible to vote.

Bearing in mind the time, I shall not go into great detail on the arguments, but there is a powerful case for setting a threshold at a level that would require a substantial turn-out. An issue that is put to a referendum would normally be of some significance and a significant turn-out would be required to justify passing it.

The other aspect of my "no" answer to the Minister's argument is that it is not a consistent practice in the holding of referendums. The referendums in Scotland and Wales in 1979 had 40 per cent thresholds. Excluding early plebiscites on the border in Northern Ireland, there have been just five referendums in this country in which a simple majority has sufficed. Five against two does not establish sufficient precedent to justify arguing that it is normal practice.

There is a powerful case for considering a threshold, and 40 per cent is an appropriate figure. There is a precedent for it and we have used it before. It is even more appropriate now, because if we are moving towards a rolling register, it will be easier to ensure that 40 per cent of eligible electors relates to roughly 40 per cent of those capable of voting. There will not be a hidden additional threshold built in by a dated electoral register.

That practical point facilitates my argument, but my main point is one of principle. We have had thresholds before and my proposal would counter the problem of an extraordinarily low turn-out, which would

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undermine the legitimacy of significant change. For those reasons, I believe that Amendment No. 244 is eminently desirable.

Lord Bassam of Brighton: I always feel in these debates that I am completing an important part of my education, particularly when the noble Lord, Lord Norton of Louth, speaks. It also reminds me of my youth. One of the things that famously brought me into an interest in politics was falling out with my mother over the fate of our village green, which was then subjected to a referendum. I won and she lost. I became involved in politics and she held it against me for many years afterwards because the village did not get its village hall for another 15 years.

However, Amendments Nos. 230 and 244 offer two alternative proposals for thresholds in relation to referendums. Amendment No. 230 would provide for a turnout threshold requiring that at least 60 per cent of the electorate voters cast a valid ballot in order for the result of the referendum to be valid. Amendment No. 244 would require that, for the result of a referendum to be valid, a proposition must have the support of a qualified majority; that is, one consisting of at least 40 per cent of the electorate. In effect that amendment would provide for both a voting and a turnout threshold.

I should perhaps point out that that would run against the guidance given in the Nairne report which suggested that the use of a threshold was a political decision but that if thresholds were used it should be a set percentage of the votes cast, not a percentage of the eligible electorate. If thresholds are set, a clear explanation of the meaning of the threshold should be included in the public information provided. That is eminently sensible and seems reasonable to me if that is the course one wishes to travel.

It is one of the curiosities of this debate that those who are pre-eminently concerned to defend our existing arrangements--even those who do not like referendums--for choosing who governs the country suddenly find the principle of simple majority wanting when it comes to a referendum. Indeed, in that context, the noble Lord, Lord Mackay, pointed to the irony of the situation, as always with great wit, in Italy when in a recent referendum there 82 per cent voted in support of abolishing PR and the development of a first-past-the-post system but that was negatived by the threshold set.

Our parliamentary democracy operates on the principle that a simple majority of those voting is enough. The Nairne Commission in its 1996 report on the conduct of referendums observed that,

    "A simple majority of those who cast their votes carries a natural authority".

That is our view. The commission went on to note that the justification for the use of thresholds in those countries where referendums are used to approve constitutional changes is that they,

    "provide a safeguard against basic laws being changed too easily".

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However, it might be argued that under our system of government it is the supremacy of Parliament, which could not be bound by the result of a referendum, that offers precisely such a safeguard. Parliament is at liberty to decide whether the result of a referendum is sufficiently conclusive. Nevertheless, it may be that in the case of a particular referendum, as happened in relation to the 1979 referendums on devolution, Parliament may decide that the use of a threshold is appropriate. That is a matter which should be addressed, if at all, in the specific legislation providing for the referendum in question. But it is not a principle to be conceded in the context of these generic provisions.

The Government fully agree that high turnouts are desirable. It is important for the health of a democracy that people have sufficient interest in how they are governed to exercise their right to vote. That is why we too were disappointed at the level of turnout for the Welsh referendum in particular, a turnout, as I recall, of 50 per cent. The Government are firmly committed to increasing voter turnout and the electoral commission will have an important role to play in that respect. But it is a very different sort of proposition to argue that the validity of the outcome of a poll is fatally undermined simply because an insufficient number of voters voted for the proposition or bothered to vote at all. I suspect that few local councils are elected on the kind of turn-out that Amendment No. 230 would require, but does that invalidate the outcome of those local elections? I suggest that it does not, even though it is a matter of considerable regret.

I know that Members opposite will argue that it is the fundamental nature of the decision being made in a referendum that requires that a conclusive mandate be maintained. But that argument could be used in the context of elections. The imposition of a threshold based on a proportion of the electorate may not be the best means of addressing the point. Indeed, the logic of the argument might point to compulsory voting rather than a turn-out threshold. With a turn-out threshold in place it is not merely the way you vote which may determine the outcome of the referendum but, as the noble Lord, Lord Mackay, graciously conceded, whether you bother to vote at all. It may turn out to be expedient for those campaigning for a particular outcome to persuade their supporters to stay at home, as Berlusconi apparently did, in order to ensure that the referendum is inconclusive and, in that case, to attempt to bring down the Government. Should those who do not vote be able to exercise a veto over the will of those who do?

The kind of thresholds which these amendments provide would also place a premium on the accuracy of the electoral register. It has been calculated in the case of the 1979 referendum on Scottish devolution, where such a threshold was employed, that around 14 per cent of those included on the register were either unable or not entitled to vote. The Government have introduced measures which will ensure that the electoral register is more up to date with registration. Nevertheless, if a

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threshold were to be used in a referendum, one based on a proportion of those voting may be more reliable than one based on the electorate.

As I have said, these are issues to which Parliament will undoubtedly return when it comes to legislate for a particular referendum. In the context of this Bill, however, the general assumption that a referendum should be decided on the basis of a simple majority of those voting should, and in our view does, prevail. I hope that having heard that explanation Members opposite will feel inclined to withdraw their amendments.

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