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Lord Bach moved Amendment No. 13

On Question, amendment agreed to.

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Clause 76 [Restriction on payments in respect of campaign expenditure]:

Lord Bach moved Amendment No. 14:

    Page 60, line 15, leave out ("less") and insert ("not more").

On Question, amendment agreed to.

Clause 86 [Notional controlled expenditure]:

Lord Bach moved Amendment No. 15:

    Page 68, line 26, leave out ("less") and insert ("not more").

On Question, amendment agreed to.

Clause 91 [Restriction on payments in respect of controlled expenditure]:

Lord Bach moved Amendment No. 16:

    Page 71, line 30, leave out ("less") and insert ("not more").

On Question, amendment agreed to.

Clause 101 [Referendums to which this Part applies]:

Lord Campbell of Alloway moved Amendment No. 17:

    Page 78, line 37, after ("Parliament") insert ("or pursuant to resolutions of both Houses of Parliament on the advice of the constitutional committee of the House of Lords that certain provisions of the Bill substantially affect the constitution").

The noble Lord said: My Lords, I beg to move Amendment No. 17, which serves as a paving amendment to Amendment No. 18. With the leave of the House, I should like to speak to both amendments. The leave given on Report to withdraw Amendment No. 17 is acknowledged with gratitude and will not be misused today. The Official Report of 21st November, vol. 619, cols. 790 to 798, should be taken as read. Having explained the nature of the amendments, it is proposed to deal only with the objections raised on Report which went wide of the essential arguments, which did not seem to have been understood, and were not well conceived. Before coming to the objections, the only other matter is to acknowledge the origin of these amendments in Clause 3 of the Bill promoted by my noble friend Lord Cranborne.

Amendment No. 17 eases the restraint in Clause 101(2)(a) which inhibits any referendum triggered by Parliament despite the government. It also asserts the freedom of both Houses, if so advised under extant rules of procedure, to resolve that a pre-legislative referendum be conducted as proposed in Amendment No. 18 on the provisions of a Bill which, according to the advice of the constitutional committee of this House, would substantially affect the constitution.

As the provisions of Part VII of the Bill covering referendums are of generic application to all referendums which have to be held by or under an Act of Parliament, the Bill would have to be amended before enactment to afford a referendum as proposed. As regards the objections, the first was that there was a fundamental and principled objection to referendums. But referendums are already de facto a part of the unwritten constitution, as conceded by my noble friend Lord Mackay of Ardbrecknish.

It was also apparent from the debate on Report on these amendments and from the debate in Committee on the amendments tabled by the noble Lord,

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Lord Owen, that there is a very substantial body of well-informed opinion in favour of the principle derived from Clause 3 of the Bill promoted by my noble friend Lord Cranborne, as reflected in these amendments, albeit that, as yet, no trigger mechanism has been devised which has been found to be acceptable.

As regards that matter, my noble friend Lord Mackay of Ardbrecknish expressed some sympathy with the search for an acceptable trigger mechanism, as he put it,

    "triggered by Parliament despite the government".--[Official Report, 21/11/00; col.796.]

I have now borrowed that concept to adopt as my own. My noble friend also rejected the mechanism proposed in these amendments, but gave no reasoned objection and suggested no alternative. However, he conceded that this was a problem which, "we shall have to address". Perhaps noble Lords may wish to address the problem today as the main justification for my tabling the amendment and taking up the time of the House.

Assuredly, this matter was not addressed by the noble Lord, Lord Bassam of Brighton, who appeared to confirm that it was by design that the referendum provisions of the Bill were of generic application and, by implication, that the advice of the constitutional committee or, indeed, its very existence, were more or less irrelevant to the implementation of the provisions of this Bill. However, with respect, as has happened again today, the noble Lord, Lord Bassam, did not address the essence of the argument.

The second objection took the form of the argument put forward by my noble friend Lord Norton of Louth, that the advice of the constitutional committee should precede the Bill rather than the resolution of both Houses under the amendments which advise either House and which each House would be at liberty to ignore. But that argument, which expresses a preference for pre-scrutiny of a Bill, with which I agree, goes nowhere near the principle of the argument in support of these amendments.

Lastly, there was the argument that these amendments would not be acceptable to another place. But another place would have total freedom as regards whether to entertain these amendments, subject to the resolution of your Lordships' House. It is not understood why, on any reasoned approach, these amendments should not be acceptable, or whether it is for us in this House to pre-empt the question as regards whether they might be acceptable to another place. For this is but an enabling measure, a provision which will act as a safeguard to be put at the disposal of Parliament and at the disposal of another place. It would add a new dimension of comity which could take us a little further along the road of safeguarding the unwritten constitution from unwelcome erosion by statute, and would do so on a case-by-case basis, without derogation from the delaying power under the Parliament Acts.

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If another place were to resolve that a referendum should be held, it could impose conditions such as the form of the question to be put and the threshold and conduct of the referendum, which would be held by an independent body appointed by the Secretary of State rather than by the electoral commission. In neither House could the argument for or against a pre-legislative referendum be foreclosed upon, a matter which may well have been overlooked by my noble friend Lord Norton of Louth.

The scope of these amendments excludes Bills on which provision is being made for a referendum as well as interpretation or implementation of the Parliament Acts or any other enactments upon which it would be within the remit of the constitutional committee to advise this House, a remit which noble Lords may think could involve a reference by this House to consider and report on some acceptable trigger mechanism.

5.30 p.m.

Viscount Cranborne: My Lords, I should like to thank my noble friend Lord Campbell of Alloway for his persistence in refashioning amendment after amendment at every stage during the passage of the Bill. I thank him for persisting in promoting an idea which he perhaps over-flatteringly ascribes to Clause 3 of my parliamentary government Bill, to which your Lordships kindly gave a Second Reading in the summer of 1999 and which, for understandable reasons, did not proceed to its later stages.

My noble friend has acknowledged that, like it or lump it, referendums are with us. I accept that my noble friends Lord Mackay of Ardbrecknish and Lord Norton of Louth deplore that fact. However, as the old admiral, Lord Charles Beresford, said to my maternal grandfather--I bowdlerise the quotation determinedly for your Lordships--if my aunt had been differently fashioned, she would have been my uncle! We are in a world in which referendums exist. We must address--as the Bill attempts to do, thoroughly unsatisfactorily--the rules for conducting them. Those rules ought to include a means for triggering them. I believe I am correct in saying--particularly if I understand my noble friend's reading of the Bill--that at present a referendum can only be triggered by the Government. The political complexion of a government does not matter, but in most cases in recent as well as ancient history the government of the day have commanded a majority in another place and the other place ultimately does what the government of the day decree; and in the end, thanks to the Parliament Acts, this House has to follow suit.

In an age in which referendums are increasingly held on what are by common consent big issues, if they command a "Yes" vote they give rise to decisions that are irreversible. So it is curious, when the government of the day would not undertake a referendum of that kind unless they thought they could win it--and indeed wanted to win it--that the decision should be entirely at their discretion. If they thought that they could not win the referendum, theoretically they could push an irreversible measure on a big issue through

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both Houses of Parliament without reference to the electorate, which in practical terms might never be able to get another crack at the decision. It would be taken over the heads of the electorate, often by a government whose supporting political party might be divided as to the outcome.

So we have to worry at this point. That is something that my noble friend has magnificently succeeded in doing during the passage of the Bill. Also, in the redrafted amendments that he has submitted, he has made an extremely interesting attempt--probably a successful one--to address the criticisms that were raised.

At previous stages, the noble Earl, Lord Russell, who is not in his place, and other noble Lords asked how we define a big constitutional question. The noble Earl rightly said that it cannot be defined. However, I suspect that your Lordships would find it difficult to define an elephant, but that when you saw one, you could recognise it. Whether it was an elephant would often depend on the amount of political steam that had been raised behind any issue at a given time.

There was another objection with which I did not wholly agree, but whose force I nevertheless recognise. In the present transitional state of this House, to suggest, as I originally did, that it should be the constitutional committee of this House alone which should decide whether a question should be submitted to a referendum, might be to incur the powerful disagreement of another place. As a result, however sensible the proposal, it would not be practical.

The beauty of my noble friend's Amendments Nos. 17 and 18 is that it is open to the constitutional committee of this House to suggest that a question should be submitted to a referendum and, if another place disagrees, for exactly the same rules to apply as when the two Houses disagree in another context altogether. With his usual ingenuity, my noble friend has found an extremely attractive way round the question.

I shall not detain the House any longer. My noble friend has performed a useful service for us. We have to consider how we can close what is presently an unclosed circle between Parliament and the electorate on the major issues of the day and when there is a big, irreversible question to be decided. In an age when we increasingly deplore the lack of involvement of the electorate as a whole in the great political questions of the day, the amendment seems to me at least sensible. It offers a way of addressing that lacuna, which has constantly been deplored during the passage of the Bill through this House. It would be curious if we did not at least take my noble friend's suggestion seriously. I would go so far as to suggest that your Lordships might consider supporting it. I have certainly not heard of a better suggestion during the course of the past few months.

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